Re: Mercantile Mutual Custodians P/L v Village Nine Network Rest. & Bars P/L

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.