Pihiga Pty Ltd v Roche

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.