MB v Protective Commissioner

In the case of MB v Protective Commissioner, the applicant sought judicial review of decisions made by the Commissioner regarding the disclosure of documents in relation to an investigation. The Federal Court of Australia was tasked with examining the appropriateness of the Commissioner's decisions and the admissibility of certain evidence. The primary issue before the court was whether the Protective Commissioner was correct in his decision to admit certain evidence, specifically, a settlement offer made without prejudice, which the applicant argued should not have been considered due to the absence of any assertion by the Commissioner that he intended to rely on the terms of the offer for the purpose of determining costs.

The court examined the principles surrounding the admissibility of without prejudice communications in judicial review proceedings. It was established that, in general, without prejudice communications are not admissible as evidence in court proceedings. However, the court noted that there is an exception where the party against whom the communication is to be used has expressly or impliedly asserted an intention to rely on it, particularly in relation to determining costs. In this case, the court found that the Commissioner had not made any such assertion, and therefore, the without prejudice offer should not have been admitted as evidence. The court held that the Commissioner's decision to admit the evidence was in error, as it was not relevant to the merits of the case or the determination of costs.

As a result of the court's findings, the decision of the Protective Commissioner was quashed, and the matter was remitted back for reconsideration without the inadmissible evidence. The court also considered the appropriate orders regarding costs, taking into account the nature of the proceedings and the conduct of the parties. Ultimately, the court ordered that the costs of the proceeding be paid by the Commissioner, reflecting the error made in admitting the without prejudice communication. This decision underscores the importance of adherence to evidentiary principles in judicial review proceedings and the potential consequences of disregarding such principles.