Phe & Leng

The case of Phe & Leng involves a dispute between the parties, with the wife seeking relief for parenting orders and a property settlement. The husband's appeal concerns the exclusion of evidence related to settlement negotiations under s 131(1) of the Evidence Act. The court was tasked with determining whether certain communications made during settlement negotiations were admissible as evidence in the proceedings. Section 131(1) of the Evidence Act establishes an absolute privilege against the admission of communications made in connection with attempts to negotiate a settlement of a dispute. This privilege is not discretionary and can only be overcome if one of the exceptions under s 131(2) applies. In this instance, the court had to consider whether the exception in s 131(2)(g) was relevant, which applies if evidence or an inference from evidence is likely to mislead the court unless the communication is adduced to contradict or qualify that evidence.

The court evaluated the differing interpretations of s 131(2)(g) of the Evidence Act, with one view being that the exception applies when the privileged communication contradicts or qualifies existing evidence or an inference from that evidence, potentially misleading the court. This broader interpretation was supported by various cases, including Nader v Sutherland Shire Council. The alternative, narrower view, held that the exception applies only when the privileged communication could enable a party to mislead the court about the course of settlement negotiations, where that matter was an issue in the proceedings. This narrower interpretation was initially expressed by Emmett J in Brown v Commissioner of Taxation and has been supported by other cases. The court had to determine which interpretation was more appropriate in the context of the present case.

After considering the arguments and the relevant authorities, the court dismissed the husband's appeal. The court held that the broader interpretation of s 131(2)(g) was the correct one, in line with the ordinary meaning of the provision. The court found that the exception applied when the privileged communication contradicted or qualified existing evidence or an inference from that evidence, potentially misleading the court. Given this, the court ruled that the evidence in question was properly excluded under s 131(1) of the Evidence Act and that no exception under s 131(2) was satisfied. The appeal was dismissed, and there was no order as to costs.