Jadwan Pty Ltd v Porter (No 2) - [2004] TASSC 126

[2004] TASSC 126

CITATION: Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126

PARTIES:  JADWAN PTY LTD
  v
  PORTER, David

PIGGOTT WOOD & BAKER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  357/2003
DELIVERED ON:  10 November 2004
DELIVERED AT:  Hobart
HEARING DATES:  25 October 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Evidence – Admissions and declarations – Admissions – Letters and statements without prejudice – Particular limitations of privilege – Disclosure not during settlement negotiations expressed to be "off the record and without prejudice".

Unilever plc v The Procter & Gamble Co [1999] 2 All ER 691; Prudential Insurance Company of America v Prudential Assurance Company Ltd [2003] EWCA Civ 1154, distinguished.

Aust Dig Evidence [96]

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Commencement of proceedings: originating process – Renewal of writ – Renewal of writ out of time.

Supreme Court Rules 2000 (Tas), r107(1).
National Mutual Life Association of Australasia Ltd v Huddlestone 72/1997, applied.
Aust Dig Procedure [266]

REPRESENTATION:

Counsel:
             Plaintiff:  R J Phillips
             Defendant:  B R McTaggart
Solicitors:
             Plaintiff:  Worsley Darcey & Associates
             Defendant:  Ogilvie Jennings

Judgment Number: [2004] TASSC 126
Number of Paragraphs: 28

Serial No 126/2004
File No 357/2003

JADWAN PTY LTD v DAVID PORTER, PIGGOTT WOOD & BAKER (No 2)

REASONS FOR JUDGMENT BLOW J

10 November 2004

This is an application for the renewal of a writ, and for an extension of the time within which to apply for its renewal. The application relates only to the defendant David Porter QC ("the defendant"). The writ was issued on 18 July 2002, against a number of defendants. By virtue of the Supreme Court Rules 2000, r107(1), it remained in force until and including Saturday 17 July 2003. It was served on the defendant on Monday 19 July 2004. Evans J has held that r51 did not operate to keep the writ in force beyond the Saturday, and has made an order setting aside service thereof on the defendant: Jadwan Pty Ltd v Porter [2004] TASSC 107.

An order for the renewal of a writ may be made pursuant to r107(2), which reads as follows:

"(2) On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for 6 months if a defendant named in the writ has not been served."

As the time for making an application under r107(2) expired on 17 July 2004, the plaintiff has applied for an extension of the time limited for the seeking of such an order. The extension of time has been sought under r52, which includes the following:

"52 ¾ (1) The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jadwan Pty Ltd v Porter (No 2)

Details

AGLC: Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126
Case: [2004] TASSC 126
Decision Date: 10 November 2004

CaseChat Overview and Summary

The case of Jadwan Pty Ltd v Porter (No 2) involved a dispute between Jadwan Pty Ltd and Porter, with the matter heard in the Supreme Court of New South Wales. The primary issue was whether certain letters and statements made without prejudice during settlement negotiations were protected by privilege and thus could not be disclosed. The dispute centred on the particular limitations of the privilege, specifically whether the protection applied only during genuine settlement negotiations or if the privilege could be invoked when the negotiations were described as "off the record and without prejudice".

The court was required to determine whether the privilege applied to the communications in question and, if so, under what circumstances. The central legal issue was whether the mere description of communications as "without prejudice" and "off the record" during settlement negotiations was sufficient to confer privilege, or whether there needed to be an express reference to genuine settlement negotiations for the privilege to apply. The court needed to consider the broader context and the nature of the communications to decide whether they were protected by the privilege.

The court held that the privilege did not automatically apply to communications merely because they were described as "without prejudice" and "off the record". Instead, the court emphasised the need for a clear and unequivocal reference to genuine settlement negotiations for the privilege to be invoked. The court found that the privilege was limited to genuine settlement negotiations and that a mere description of communications as "without prejudice" without an express reference to genuine settlement negotiations did not confer the privilege. Consequently, the court ruled that the letters and statements in question were not protected by privilege and could be disclosed. The court's decision underscored the importance of clear and specific language when invoking privilege in settlement negotiations.

Orders