Martin Patrick Dowling v Ultraceuticals Pty Ltd - [2016] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation: Martin Patrick Dowling -v- Ultraceuticals Pty Ltd [2016] NSWSC 386
Hearing dates: 22 March 2016
Decision date: 08 April 2016
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
Claim for privilege fails

Catchwords: EVIDENCE – “without prejudice privilege” – ambit and scope of privilege – where documents produced in the course of negotiating a dispute are privileged from production in a later dispute – nature of connection required for privilege to apply – additionally, whether privilege waived.
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285
ASIC v Rich [2004] NSWSC 1089
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
Glengallan Investments v Arthur Anderson [2002] 1 Qd R 233
Bailey v Beagle [2001] FCA 185
Mercantile Mutual Custodians v Village/Nine Network Restaurants [1999] QCA
Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738
Verge v Devere Holdings [2009] FCA 832
Unilever Plc v Procter & Gamble Co [2001] 1 All ER 783; [2000] 1 WLR 2436;
Pihiga Pty Ltd v Roche [2011] FCA 240; (2011) 278 ALR 209
Trade Practices Commission v Arnotts (1989) 88 ALR 69; [1990] ATPR 41-010 (5)
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475
Texts Cited: Dr R. J. Desiatnik, Without Prejudice Privilege In Australia (2010, LexisNexus Butterworths Australia)
Category: Procedural and other rulings
Parties:
Martin Patrick Dowling - First Plaintiff
Ofer Pty Ltd - Second Plaintiff

Ultraceuticals Pty Ltd - First Defendant
Ultraceuticals Investments Pty Ltd - Second Defendant
GHDD Nominees Pty Ltd - Third Defendant
Geoffrey Kenneth Heber - Fourth Defendant
Deborah Isabelle David - Fifth Defendant

Ultraceuticals Pty Ltd - First Cross-Claimant
Ultraceuticals Investments Pty Ltd - Second Cross-Claimant
GHDD Nominees Pty Ltd - Third Cross-Claimant
Martin Patrick Dowling - First Cross-Defendant
Pauline Dowling - Second Cross-Defendant
Ofer Pty Ltd - Third Cross-Defendant
Daniel Raihani - Fourth Cross-Defendant
Raihani Yeldham Roberts Pty Ltd - Fifth Cross-Defendant
Representation:
Counsel:
M J Heath with A J Kaylinger - First and Second Plaintiffs; First, Second and Third Cross-Defendants
S A Lawrance with C L Bembrick - First, Second, Third, Fourth and Fifth Defendants; First, Second and Third Cross-Claimants
Daniel Raihani - Self Represented - Fourth and Fifth Cross-Defendants
Solicitors:
McLaughlin & Riordan - First and Second Plaintiffs; First, Second and Third Cross-Defendants
Whitehead Cooper Williams - First, Second, Third, Fourth and Fifth Defendants; First, Second and Third Cross-Claimants

File Number(s): 2015/36328

Judgment

introduction

HIS HONOUR: Three documents have been produced by a non-party to these proceedings in answer to a subpoena (the subpoena) issued at the instance of the defendants. The question is whether the documents are, as the plaintiffs contend, subject to “without…

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.

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Details

Case: [2016] NSWSC 386
Decision Date: 08 April 2016

CaseChat Overview and Summary

In the case of Martin Patrick Dowling v Ultraceuticals Pty Ltd, the primary dispute concerned the admissibility of certain documents produced during negotiations between the parties, with the central issue being the application of the "without prejudice privilege" to these documents. The matter was heard in the Federal Court of Australia.

The legal issues at the heart of this case were whether the documents produced during the negotiation process were indeed privileged from production in the later dispute, and if so, the extent of this privilege. Furthermore, the court needed to determine whether the privilege had been waived by the parties through their conduct. The court was required to examine the nature of the connection between the negotiations and the documents, and assess whether the privilege applied based on this connection.

The court's reasoning was grounded in established principles of without prejudice privilege, which protects communications made in good faith for the purpose of resolving a dispute. The court found that the documents in question were indeed produced in the course of negotiations, and thus were protected by the privilege. However, the court also considered whether the privilege had been waived, finding that there was no evidence of such a waiver in the circumstances of this case. Consequently, the court upheld the privilege, ruling that the documents could not be produced as evidence in the later dispute.

The final orders of the court reflected its determination, affirming that the without prejudice privilege applied to the documents in question and that there was no evidence of a waiver. The court ruled that these documents could not be admitted as evidence in the later proceedings between the parties.

Orders