ROOKS & GENNER

The wife applied to set aside final property consent orders, alleging a miscarriage of justice. The husband sought summary dismissal of her application, arguing she had no reasonable prospects of success.

The court was required to determine whether certain communications made during settlement negotiations were admissible as evidence, notwithstanding the general rule against admitting such communications under section 131 of the Evidence Act 1995 (Cth). Specifically, the court had to consider whether these communications fell within an exception to the rule, namely where a person knew or ought reasonably to have known that the communication was made in furtherance of a deliberate abuse of power. The court also considered its general powers to control proceedings and deal with abuse of process under section 11(2) of the Evidence Act.

The court reasoned that while section 131 generally protects settlement communications, this protection is lost if the communication was made in furtherance of a deliberate abuse of power. Drawing on authorities such as *Van Der Lee v New South Wales* and *Petrolink Pty Ltd; Smith v Bone*, the court held that the concept of "abuse of power" includes abuse of process and that evidence of such abuse may be admitted. The court found that the wife's allegations of abuse of power were central to her case and that, in the context of an application for summary dismissal where the husband bore the onus of proving no reasonable prospects of success, certain communications might be admissible if they provided grounds for concluding an abuse of power had occurred.

The court ordered that the wife's Initiating Application be dismissed and directed that the matter be removed from the active case list.