IGA Distribution Pty Ltd v King and Taylor Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2068 of 2001

IGA DISTRIBUTION PTY LTD	Plaintiff
v
KING & TAYLOR PTY LTD	First Defendant
DELAHEY PROPERTIES PTY LTD	Second Defendant

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RULING NO. 5

JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATES OF HEARING:	11 September 2002
DATE OF RULING:	11 September 2002
CASE MAY BE CITED AS:	IGA Distribution Pty Ltd v King & Taylor Pty Ltd and anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 404

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.M. Garratt QC with Mr M.K. Moshinsky	Cornwall Stodart
For the First Defendant	Mr J.D. Hammond QC with Ms J.E. Richards	Richard Szental
For the Second Defendant	Mr P.J. Hayes with Ms L. Hannon	Efron & Associates

HIS HONOUR:

I note that Mr Garratt has sought to tender absolutely a communication recording the contents of a conversation had on 18 July 2001 between Mr Shaw and Mr Assetta and that objection has been taken on the grounds that it is protected as a without prejudice communication.

Questions have been asked by Mr Hammond on behalf of the first defendant in the course of the cross-examination of Mr Shaw in an endeavour to establish that the communications were in truth without prejudice in the sense that they were conducted in order to settle or to move towards settlement of an existing dispute.

I have allowed to Mr Garratt, who appears for the plaintiff, the opportunity to cross-examine Mr Assetta, the other party to the conversation, in order to add to the evidence as to the nature of the communications before I rule upon that communication and he has accepted that invitation.

In the circumstances, I will stand over until after Mr Assetta's cross-examination a final ruling upon the question.

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CaseChat Overview and Summary

In the Supreme Court of Victoria, IGA Distribution Pty Ltd brought an action against King & Taylor Pty Ltd and De Lahey Properties Pty Ltd. The plaintiff sought damages for breach of contract and for deceit. The crux of the dispute centred on the admissibility of a particular communication that the plaintiff sought to tender as evidence. The defendants objected to the evidence on the grounds that it was protected as a without prejudice communication.

The court was tasked with determining whether the communication was indeed without prejudice, thereby barring its admissibility. The plaintiff argued that the communication was not without prejudice, as it did not pertain to any attempt to settle an existing dispute. The defendants, however, contended that the communication was intended to facilitate a settlement of the ongoing dispute between the parties, thus qualifying it as a without prejudice communication. The court needed to examine the nature of the conversation and the context in which it took place to make a ruling.

Justice Nettle allowed the plaintiff to cross-examine the other party to the conversation to gather additional evidence. The court decided to stand over its ruling until after this cross-examination to ensure a comprehensive understanding of the communication's nature. The judgment reflects the court's cautious approach in handling without prejudice communications, recognising the importance of protecting parties engaged in genuine settlement negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established