Jadwan Pty Ltd v Porter (No 2)

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.