Ingot v Macquarie

In the Supreme Court of New South Wales, Ingot was the plaintiff and Macquarie was the defendant. The dispute centred around an application by the plaintiffs to set aside a notice to produce, which sought the production of "without prejudice" correspondence. The plaintiffs aimed to obtain these communications, which were related to an attempted mediation. The legal issues revolved around the applicability of s 131(2)(g) of the Evidence Act 1995 and s 110P of the Supreme Court Act 1970. Specifically, the court needed to determine whether the situation was governed by s 131(2)(g) or s 110P. Additionally, the court had to consider whether, if the correspondence was inadmissible under s 110P, it still had a legitimate forensic use that would justify the notice to produce. The court also needed to exercise its discretion to exclude evidence under s 135 of the Evidence Act.

The court analysed the nature of the "without prejudice" correspondence and their potential forensic use. It noted that the communications were not privileged under s 110P because they were not made in the course of a dispute resolution procedure. The court then turned to the issue of whether the correspondence had a legitimate forensic use. It found that the plaintiffs had not demonstrated that the documents had any legitimate forensic use beyond their contents being relevant to the issues in the case. The court held that the plaintiffs had failed to establish a proper basis for the notice to produce, and thus exercised its discretion to exclude the evidence under s 135 of the Evidence Act.

The court set aside the notice to produce and dismissed the plaintiffs' application. The plaintiffs were ordered to pay the defendant's costs of the application. This decision underscores the importance of demonstrating a legitimate forensic use for "without prejudice" communications when seeking to produce them in litigation. The court's ruling highlights the need for parties to carefully consider the potential implications of such communications and to ensure that their use is justified under the relevant statutory provisions.