Pihiga Pty Ltd v Roche

Case [2011] FCA 240

FEDERAL COURT OF AUSTRALIA

Pihiga Pty Ltd v Roche [2011] FCA 240

Citation: Pihiga Pty Ltd v Roche [2011] FCA 240
Parties: PIHIGA PTY LTD ACN 002 297 056, FARNSWORTH PROPRIETARY LTD ACN 007 579 017, MELUKE PTY LTD ACN 002 009 458, LISA PROPRIETARY LTD ACN 007 579 044, JOSEPHINE LEPETIT and GUY O'LOGHLEN REYNOLDS v FIONA ROCHE, JUSTIN PROPRIETARY LTD ACN 007 578 985, BERENWODE PROPRIETARY LIMITED ACN 007 578 985, DAVID JEROME ROCHE, HEROC PTY LTD ACN 008 086 904, DEBORAH ANN HAMILTON, GRAHAM DOUGLAS WALTERS, DAVID CRANSTON MUNT and ROBERT DEAN KING; FIONA ROCHE, JUSTIN PROPRIETARY LIMITED ACN 007 579 035, HEROC PTY LTD ACN 008 086 904, DEBORAH ANN HAMILTON and GRAHAM DOUGLAS WALTERS; PIHIGA PTY LTD ACN 002 297 056, FARNSWORTH PROPRIETARY LTD ACN 007 579 017, MELUKE PTY LTD ACN 002 009 458, LISA PROPRIETARY LTD ACN 007 579 044, JOSEPHINE LEPETIT, GUY O'LOGHLEN REYNOLDS, ROBERT DEAN KING, BERENWODE PROPRIETARY LIMITED ACN 007 578 985, DAVID JEROME ROCHE and DAVID CRANSTON MUNT
File number: SAD 98 of 2010
Judge: LANDER J
Date of judgment: 17 March 2011
Corrigendum: 17 October 2011
Catchwords:

PRACTICE AND PROCEDURE – “without prejudice” – whether evidence of discussions in mediation between applicant and respondent admissible in alternative proceedings – scope of “without prejudice” rule at common law – exceptions to “without prejudice” rule at common law – whether “without prejudice” rule applies where misleading and deceptive conduct alleged – whether terms of settlement deed prohibit the introduction of documents prepared for the purposes of a mediation.

EVIDENCE – whether evidence of discussions in mediation inadmissible under s 131(1) of the Evidence Act 1995 (Cth) – whether s 131(1) does not apply by reason of exceptions in s 131(2) of the Evidence Act 1995 (Cth) – whether the exceptions under s 131(2)(g), (i) and (j) established – whether evidence should be excluded under s 135(a) of the Evidence Act 1995 (Cth).

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 24, 53B
Evidence Act 1995 (Cth) ss 131, 135
Corporations Act 2001 (Cth) ss 1325, 1014E
Trade Practices Act 1974 (Cth) ss 52, 87
Australian Securities and Investments Commission Act2001 (Cth) s 12GM
Fair Trading Act 1987 (NSW) s 72
Fair Trading Act 1987 (SA) s 85

Federal Court Rules O 11 r 16

Cases cited:

Walker v Wilsher (1889) 23 QBD 335 referred to
Ofulue v Bessert (2009) 1 AC 990 followed
Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 discussed
Rush & Tomkins Ltd v Greater London Council (1989) 1 AC 1280 cited
Cutts v Head [1984] 2 WLR 349 discussed
Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] 3 WLR 1424 followed
Walton v Gardiner (1993) 177 CLR 378 cited
Rush & Tomkins Ltd v Greater London Council (1989) 1 AC 1280 cited
Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86 applied
Rosebanner Pty Ltd v Energy Australia (2009) 223 FLR 406

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Details
AGLC
Pihiga Pty Ltd v Roche [2011] FCA 240
Case
[2011] FCA 240
Decision Date

CaseChat Overview and Summary

Pihiga Pty Ltd, the applicant, brought proceedings against Roche, the respondent, seeking relief in relation to misleading and deceptive conduct. The applicant sought to adduce evidence of communications made during a mediation process between the parties, which the respondent argued should be inadmissible due to the "without prejudice" rule. The matter was brought before the court to determine the admissibility of such evidence under the Evidence Act 1995 (Cth) and the common law.

The legal issues before the court were whether evidence of discussions in mediation was admissible in alternative proceedings, the scope of the "without prejudice" rule at common law, and whether exceptions to the "without prejudice" rule applied in this case. Specifically, the court needed to decide if the "without prejudice" rule applies where misleading and deceptive conduct is alleged and whether the terms of a settlement deed prohibit the introduction of documents prepared for the purposes of mediation. Additionally, the court had to consider whether section 131(1) of the Evidence Act precludes the evidence, and if the exceptions outlined in section 131(2) of the Act applied. Finally, the court needed to determine if the evidence should be excluded under section 135(a) of the Evidence Act.

The court found that the "without prejudice" rule at common law does not apply where misleading and deceptive conduct is alleged, as such conduct falls outside the scope of the rule. The court further held that the terms of the settlement deed did not prohibit the introduction of documents prepared for the purposes of mediation. Regarding the Evidence Act, the court found that while section 131(1) generally excludes evidence of settlement negotiations, the exceptions in section 131(2) applied in this case. Specifically, the court determined that the exceptions under section 131(2)(g), (i), and (j) were established, allowing the evidence to be admissible. The court concluded that the evidence should not be excluded under section 135(a) of the Evidence Act.

The court dismissed the respondent's notice of motion, allowing the applicant to adduce the evidence of discussions in mediation in the alternative proceedings. The final order was that the respondents’ notice of motion of 10 March 2011 be dismissed.

Orders

Orders of the court

1. The respondents’ notice of motion of 10 March 2011 be dismissed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 131 of the Evidence Act provides:131 Exclusion of evidence of settlement negotiations(1) Evidence is not to be adduced of:(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.(2) Subsection (1) does not apply if:(a)the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or(b)the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or(c)the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or(d)the communication or document included a statement to the effect that it was not to be treated as confidential or(e)the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or(f)the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or(g)evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or(h)the communication or document is relevant to determining liability for costs; or(i)making the communication, or preparing the document, affects a right of a person; or(j)the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or(k)one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.(3) For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is fact in issue and there are reasonable grounds for finding that:(a) the fraud, offence or act was committed; and(b) a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act;the court may find that the communication was so made or the document so prepared.(4) For the purposes of paragraph (2)(k), if:(a) the abuse of power is a fact in issue; and(b)there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power;the court may find that the communication was so made or the document was so prepared.(5) In this section:(a)a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and(b)a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and(c)a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and(d)a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and(e)a refernce to commission of an act includes a reference to a failure to act.(6) In this section:power means a power conferred by or under an Australian law.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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