Georgeski v Owners Corporation SP49833

[2004] NSWSC 945

CITATION:	Georgeski v Owners Corporation SP49833 [2004] NSWSC 945
HEARING DATE(S):	07/10/04, 08/10/04
JUDGMENT DATE:	7 October 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Tender of correspondence rejected
CATCHWORDS:	EVIDENCE - admissibility - correspondence on settlement negotiations - prima facie inadmissible - whether admissible because of need to "control the conduct of a proceeding" or under exception for "deliberate abuse of power"
LEGISLATION CITED:	Evidence Act 1995, ss.11,131
CASES CITED:	Kang v Kwan [2001] NSWSC 698 Norman v Howarth (2003) 180 FLR 1 Van Der Lee v State of New South Wales [2002] NSWCA 286
PARTIES :	Annette Georgeski - Plaintiff Owners Corporation SP 49833 - First Defendant Anne Catherine Hynd - Second Defendant Joan Mary Hutchinson - Third Defendant State of New South Wales - Fourth Defendant
FILE NUMBER(S):	SC 5018/02
COUNSEL:	Mr M F Holmes QC/Ms K Richardson - Plaintiff Mr D A Smallbone - Second and Third Defendants Mr T H Barrett - Fourth Defendant
SOLICITORS:	Warren McKeon Dickson - Plaintiffs Dobes & Andrews - First Defendant McCabe Partners - Second and Third Defendants I V Knight, Crown Solicitor - Fourth Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 7 OCTOBER 2004.

5018/02 - ANNETTE GEORGESKI v OWNERS CORPORATION SP9833 AND 3 ORS

JUDGMENT ON TENDER OF DOCUMENTS – SEE PAGE 77 OF TRANSCRIPT

1 The second and third defendants seek to introduce into evidence correspondence between the solicitors for the plaintiff and the solicitors for, respectively, the first, second and third defendants, covering a period from October 2003 to September 2004. The correspondence is unquestionably of a kind referred to in s.131(1) of the Evidence Act 1995 (which deals with communications in an attempt to negotiate a settlement of a dispute) and, in obedience to that section, evidence of its content is not to be adduced unless, of course, some other provision of the Evidence Act permits the evidence to be adduced.

2 The second and third defendants point to two possibilities in this regard. The first arises under s.11 of the Evidence Act, a section which, in Van Der Lee v State of New South Wales [2002] NSWCA 286, the Court of Appeal held capable of overriding the exclusion effected by s.131(1). The second possibility arises under s.131(2)(k) which is one of the provisions of s.131 itself creating exceptions to the s.131(1) exclusion.

3 Section 11(1) of the Evidence Act says that the power of a court “to control the conduct of a proceeding” is not affected by the Evidence Act except so far as the Act itself otherwise provides whether expressly or by necessary intendment. Section 11(2) gives a particular example of what is spoken of in s.11(1). The particular example refers to the powers of the court with respect to abuse of process in a proceeding and says that those powers are not affected.

4 In paragraph 12 their defence filed 16 September 2004, the second and third defendants say that the plaintiff’s claim for injunctive relief in relation to entry upon the land the subject of her licence from the Crown is motivated by a collateral purpose of discouraging the second and third defendants from making use of their right of way over the plaintiff’s land. There is thus, in a sense, an issue of abuse of process raised in paragraph 12 of the defence. I say “in a sense” because the second and third defendants do not take the step of saying that the proceedings should be stayed or dismissed because they represent an abuse of process on the part of the plaintiff. Rather, they say that collateral purpose (which is no doubt a hallmark of abuse of process) is something that the court should, in the fullness of time, take into account as a discretionary matter if and when it finds that the plaintiff has otherwise made out an entitlement to the injunctive relief she seeks.

5 Van Der Lee (above) was a case in which abuse of process was raised squarely by means of notices of motion seeking orders that cross-claims be stayed or dismissed as an abuse of process. It is understandable, therefore, that that case was seen as coming within s.11. The notices of motion were a direct means of asking the court to do what is referred to in s.11(1), that is, “to control the conduct of a proceeding” by effectively cutting the proceeding off before it came to a natural conclusion: see also Norman v Howarth (2003) 180 FLR 1.

6 That is not what the second and third defendants are attempting to do here. They do not seek to exclude the plaintiff’s claims from consideration by the court. Their desire is that the proceeding continue to a natural conclusion and that any proved collateral purpose of the plaintiff be taken into account as a discretionary matter in the eventual adjudication on the merits.

7 I do not regard that course as something that involves control by the court of “the conduct of a proceeding”. That form of words is not apt to describe the process of allowing a proceeding to continue to its natural conclusion in an uninterrupted way. I would therefore not see s.11 as a provision which displaces the s.131(1) exclusion or prohibition in this case.

8 The alternative pressed by the second and third defendants is based on s.131(2)(k). That exception to the s.131(1) prohibition is one that must be addressed by reference to the particular communication in issue, that is, the several letters I have mentioned, written in the period October 2003 to September 2004. The exception in s.131(2)(k) looks to the purpose of the communication by posing the question whether it was made “in furtherance of a deliberate abuse of power”.

9 Were the letters of October 2003 to September 2004 written “in furtherance of a deliberate abuse of power”? The letters emanated from the solicitors for four parties, being the plaintiff, the first defendant, the second defendant and the third defendant. I take it that the second and third defendants do not suggest that the communications in the form of letters written by their own solicitors were made or prepared in furtherance of a deliberate abuse of power. They must be speaking only of the letters emanating from the solicitors for the plaintiff since it is the plaintiff who, according to the second and third defendants, has somehow embarked upon a deliberate abuse of power.

10 The relevant abuse, it is said, is the maintenance, during the period of the correspondence, of the proceedings said to involve some form of improper purpose on the part of the plaintiff. It is to be remembered that the proceedings were commenced by summons filed on 9 October 2002 and had been on foot for a year before the correspondence in question began. Indeed, there had been an aborted hearing before the correspondence began. A general theme running through the correspondence involves the question whether it might be possible to reach, by way of compromise, a commercial arrangement involving an appropriate consideration.

11 To my mind, pursuit of that correspondence, which was directed towards an attempt to bring the proceedings to a negotiated end, could not, even on the “colour to the charge” test adopted by Santow J in Kang v Kwan [2001] NSWSC 698, be seen to trespass upon the territory of deliberate abuse of power. The power being exercised was the power to attempt to negotiate by engaging in constructive and rational discussion among solicitors a mutually agreed compromise of legal proceedings. This, to my mind, is an aspect of the power to compromise proceedings and, for the purpose of the definition of “power” in the Evidence Act, must be seen as partaking of the same character as the power to commence proceedings: see Kang v Kwan (above) and the judgments of Mason P and Santow JA in Van Der Lee (above). The correspondence does not in any way suggest that the power to compromise proceedings was in any way abused, in the sense of being resorted to for some ulterior purpose.

12 Because of the nature of the relevant power and the role played by the correspondence, I do not regard the s.131(2)(k) exception as providing a way through the s.131(1) exclusion. In saying that, I say nothing about the merits or strength of the position the second and third defendants take as to the relevance to final determination of the plaintiff’s claim of any proved purpose of the plaintiff to discourage exercise of the right of way.

13 The documents sought to be tendered by the second and third defendants, being the settlement correspondence in the period October 2003 to September 2004, are rejected in obedience to s.131(1).

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Last Modified: 10/13/2004