Re: Mercantile Mutual Custodians P/L v Village Nine Network Rest. & Bars P/L - [1998] QSC 295

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.1823 of 1996
Before the Hon. Mr Justice Mackenzie
[re: Mercantile Mutual Custodians P/L v Village Nine Network Rest. & Bars P/L & Ors]
BETWEEN:
MERCANTILE MUTUAL CUSTODIANS PTY LTD
(ACN 008 508 496)
Plaintiff

AND:
VILLAGE NINE NETWORK RESTAURANTS
& BARS PTY LTD (ACN O61 400 799)
Defendant
AND:

VILLAGE ROADSHOW LIMITED
(ACN 010 672 054)
Second Defendant
AND:

PUBLISHING AND BROADCASTING LIMITED
(formerly NINE NETWORK AUSTRALIA LIMITED)
(ACN 009 071 167)
Third Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 23 December 1998
CATCHWORDS: DISCOVERY AND INTERROGATORIES - writ of non-party discovery - disclosure of documents - whether documents in arbitration between the plaintiff and the non-party should be disclosed.
Quad Consulting Pty Limited v David R Bleakley & Associates Pty Limited (1991) 27 FCR 86
AustoTel Management Pty Limited & Anor v Jamieson & Ors (1995) 57 FCR 411

Counsel:Mr S.K. Wilson QC for the first, second & third defendants
Mr D.J.S. Jackson QC with him Mr P.A. Freeburn for the applicant

Solicitors:Lees Marshall Warwick as town agents for Herbert Kneer & Rundle for the first, second and third defendants
Corrs Chambers Westgarth for the applicant

Hearing date: 3 December 1998

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.1823 of 1996
Before the Hon. Mr Justice Mackenzie
[re: Mercantile Mutual Custodians P/L v Village Nine Network Rest. & Bars P/L & Ors]
BETWEEN:

MERCANTILE MUTUAL CUSTODIANS PTY LTD
(ACN 008 508 496)
Plaintiff

AND:
VILLAGE NINE NETWORK RESTAURANTS
& BARS PTY LTD (ACN O61 400 799)
Defendant

AND:
VILLAGE ROADSHOW LIMITED
(ACN 010 672 054)
Second Defendant

AND:
PUBLISHING AND BROADCASTING LIMITED
(formerly NINE NETWORK AUSTRALIA LIMITED)
(ACN 009 071 167)
Third Defendant

JUDGMENT - MACKENZIE J.
Judgment delivered 23 December 1998

This is an application by Concrete Constructions Group Limited (Concrete Constructions) that a writ of non-party discovery issued by the defendants be set aside. Concrete Constructions was head contractor in a project for the plaintiff in the action on a building in the central business district. A dispute between Concrete Constructions and the plaintiff resulted in a successful mediation occurring. The writ of non-party discovery required the following documents:-
1.All documents which record the claims, defences, counterclaims and particulars of loss and damage in the mediation of the dispute between Mercantile Mutual Custodians Pty. Ltd. (“MM”) and Concrete Constructions Group Ltd (“CC”), in respect of the building work undertaken by CC on behalf of MM at the Queen Adelaide Building site, pursuant to a contract made between CC and MM and dated 18 November 1994.
2.All documents recording the submissions made to the mediator of the dispute between CC and MM in respect of the building work undertaken by CC on behalf of MM at the Queen Adelaide Building site, pursuant to a contract made between CC and MM and dated 18 November 1994.
Service of the writ was effected after Moynihan SJA had refused an application…

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

AGLC: Re: Mercantile Mutual Custodians P/L [1998] QSC 295
Case: [1998] QSC 295
Decision Date: 23 December 1998

CaseChat Overview and Summary

The case of Mercantile Mutual Custodians P/L v Village Nine Network Rest. & Bars P/L concerns an application by Concrete Constructions Group Limited for the writ of non-party discovery issued by the defendants to be set aside. Concrete Constructions had been the head contractor in a project for the plaintiff, Mercantile Mutual Custodians, which resulted in a successful mediation. The writ of non-party discovery sought specific documents related to the mediation between Mercantile Mutual and Concrete Constructions regarding a building project. The defendants had previously sought disclosure of these documents from the plaintiff, but their application was refused by Moynihan SJA on the grounds of without prejudice privilege and legal professional privilege.

The legal issues in this case revolve around the disclosure of documents in a mediation process and the application of without prejudice privilege and legal professional privilege. The defendants argued that the documents in question were privileged and should not be disclosed, while the plaintiff and Concrete Constructions argued that the documents were not privileged and should be disclosed for the purposes of the litigation. The defendants also argued that the issuance of the writ was an abuse of process, given that Moynihan SJA had previously ruled against disclosure of the same documents.

The court found that the writ of non-party discovery should be set aside as it proceeded on the basis of a perceived exception in Moynihan SJA's reasons, which did not exist. The court held that there was no obligation on a person served with a writ to alter documents to remove privileged material. The court also noted that it was essential to avoid making statements that could lead to misunderstandings, particularly in affidavit form without cross-examination. The defendants were ordered to pay the costs of and incidental to the application to be taxed.

This case highlights the importance of understanding the scope of without prejudice privilege and legal professional privilege in the context of mediation and litigation. It also underscores the need for clarity and precision in legal communications, particularly in affidavit form, to avoid misunderstandings and potential abuse of process.

Orders