Jermyn v Spargos Mining NL
[2001] WASCA 149
•20 MARCH 2001
JERMYN -v- SPARGOS MINING NL [2001] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 149 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:194/2000 | 20 MARCH 2001 | |
| Coram: | ANDERSON J WHEELER J | 20/03/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | PETER GEOFFREY JERMYN SPARGOS MINING NL |
Catchwords: | Evidence Privileged communication Settlement negotiations Communication allegedly containing threat to engage in unlawful conduct |
Legislation: | Nil |
Case References: | Nil Attorney-General (NT) v Kearney (1985) 158 CLR 500 Cutts v Head [1984] Ch 290 Data Quest (Australia) Pty Ltd v Data Quest Inc, unreported; Fed Ct; 8 August 1996 Davies & Davies v Nyland & O'Neil (1975) 10 SASR 76 Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 Grovit v Doctor [1997] 2 All ER 417 Hamersley Iron Pty Ltd v Metal & Engineering Workers Union - Western Australia & Ors, unreported; SCt of WA; Library No 970184; 24 April 1997 Harrington v Lowe (1996) 190 CLR 311 Hughes v Gales (1995) 14 WAR 434 J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd (1992) 2 Qd R 121 Kurtz & Co v Spence & Sons (1887) 57 LJ Ch 238 Lukies v Ripley (No 2) (1994) 35 NSWLR 283 Murchison Zinc Co Pty Ltd v Theiss Contractors Pty Ltd [2000] WASCA 167 Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86 R v Jessen (1996) 89 A Crim R 335 Re Daintrey, Ex parte Hold [1893] 2 QB 116 Re Daniel Efrat Consulting Services Pty Ltd (1999) 162 ALR 429 Re Movitor Pty Ltd (1996) 136 ALR 643 State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1980] WAR 254 Tracey v The Queen (1999) 20 WAR 555 Trades Practices Commission v Arnotts Ltd (1989) 88 ALR 69 Unilever plc v Proctor & Gamble Co [1999] 2 All ER 691 Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [1999] QCA 276 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JERMYN -v- SPARGOS MINING NL [2001] WASCA 149 CORAM : ANDERSON J
- WHEELER J
- Applicant (Third Defendant)
AND
SPARGOS MINING NL
Respondent (Plaintiff)
Catchwords:
Evidence - Privileged communication - Settlement negotiations - Communication allegedly containing threat to engage in unlawful conduct
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant (Third Defendant) : Ms C J McLure QC
Respondent (Plaintiff) : Mr A F Mizen
Solicitors:
Applicant (Third Defendant) : Minter Ellison
Respondent (Plaintiff) : Alan Mizen
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Cutts v Head [1984] Ch 290
Data Quest (Australia) Pty Ltd v Data Quest Inc, unreported; Fed Ct; 8 August 1996
Davies & Davies v Nyland & O'Neil (1975) 10 SASR 76
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
Grovit v Doctor [1997] 2 All ER 417
Hamersley Iron Pty Ltd v Metal & Engineering Workers Union - Western Australia & Ors, unreported; SCt of WA; Library No 970184; 24 April 1997
Harrington v Lowe (1996) 190 CLR 311
Hughes v Gales (1995) 14 WAR 434
J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd (1992) 2 Qd R 121
Kurtz & Co v Spence & Sons (1887) 57 LJ Ch 238
Lukies v Ripley (No 2) (1994) 35 NSWLR 283
Murchison Zinc Co Pty Ltd v Theiss Contractors Pty Ltd [2000] WASCA 167
Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86
R v Jessen (1996) 89 A Crim R 335
Re Daintrey, Ex parte Hold [1893] 2 QB 116
(Page 3)
Re Daniel Efrat Consulting Services Pty Ltd (1999) 162 ALR 429
Re Movitor Pty Ltd (1996) 136 ALR 643
State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1980] WAR 254
Tracey v The Queen (1999) 20 WAR 555
Trades Practices Commission v Arnotts Ltd (1989) 88 ALR 69
Unilever plc v Proctor & Gamble Co [1999] 2 All ER 691
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [1999] QCA 276
Wilson v Metaxas [1989] WAR 285
(Page 4)
1 ANDERSON J: In our opinion the judgment of the learned Master is not attended by sufficient doubt to warrant the grant of leave to appeal. The rule against the use of without prejudice communications in litigation is very strong. It is to be applied in a commonsense and practical way without drawing too fine distinctions.
2 Settlement negotiations are communications which have always been jealously protected by the courts for obvious reasons. It is very much in the public interest that litigation, whether major litigation or insubstantial litigation, be settled.
3 There are, of course, exceptions, but the underlying principle is that parties ought to be able to make known their readiness to settle and ought to be able to conduct bona fide settlement negotiations without fear of what may be said being used against them in the proceedings.
4 In my opinion, the Court should not be quick to find that bona fide settlement negotiations fall within one or other of the exceptions, such as that the communications contained a threat of some kind. It would not be at all unusual for robust settlement negotiations to be capable of yielding a threat if the content of the negotiations is raked over later.
5 I am not persuaded that the discussions deposed to in the affidavit, in the paragraphs of the affidavit in question, falls into any relevant exception. In particular, I am not persuaded that there is any threat to engage in maintenance and/or champerty.
6 There are many lawful ways in which the ultimate beneficiaries of a chose in action may be changed. In this case, so far as I can tell, it seems to me that the transaction which was in contemplation, the transaction which is said to be champertous, will not result in the plaintiff Spargos disposing of the action against the defendants, including the third defendant Mr Jermyn. The action will remain the action of Spargos and it will be Spargos which enjoys the fruits of that action should it be successful.
7 By and large - and I am oversimplifying, I am sure - the transaction contemplates that the shareholders of Spargos will have changed so that any realisation by Spargos of its assets, including its chose in action, will result in benefit to persons other than the original shareholders of Spargos.
8 I am not persuaded that an arrangement such as that is champertous, nor am I persuaded that disclosure of such an arrangement, even aggressive disclosure of such an arrangement, or disclosure of a proposal
(Page 5)
- to enter into such an arrangement made during settlement negotiations, takes the settlement negotiations out of the protection of privilege and into the public domain. They are, broadly and briefly, my reasons for coming to the conclusion that the learned Master's decision was correct and that leave should not be granted to appeal against it.
9 WHEELER J: I, too, would refuse leave to appeal on the basis that it does not sufficiently appear that the learned Master's decision may have been incorrect in relation to the conversation which is alleged. It is not, I think, necessary for me to express any view as to the transaction which in fact later took place and whether that may have constituted maintenance or champerty.
10 I accept what Anderson J said in relation to the scope of the without prejudice rule. Accepting that the conversation would otherwise come within the scope of the without prejudice rule as a conversation directed at settlement and putting a value on the action, then it seems to me that it is for the party alleging that the communication comes within the scope of one of the exceptions to demonstrate that it does so.
11 In all negotiation there is an element of bargaining and an element of pressure. The question is whether the pressure is undue or improper. It seems to me on the face of this conversation that it was open to the learned Master to reach the conclusion that there could not be, on a reasonable reading of it, an element of unlawful or improper pressure as apart from normal commercial negotiations. Once it is accepted that that view was open to the Master, as I think it was, then it seems to me that there is no sufficient doubt attending his reasons.
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