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Ryder v Frohlich

Ryder v Frohlich

Case [2006] NSWSC 1324 20 September 2006

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CITATION: Ryder v Frohlich [2006] NSWSC 1324
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/09/06

JURISDICTION: Equity

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 09/20/2006

DECISION: Claim for privilege upheld, tender rejected

CATCHWORDS: EVIDENCE – Privilege – Without Prejudice communication – whether “in connection with an attempt to negotiate a settlement” – whether “affects a right of a person” – whether in furtherance of a deliberate abuse of power – whether evidence of abuse of process – Evidence Act 1995 (NSW), ss 11, 131

LEGISLATION CITED: Evidence Act 1995 (NSW), ss 11, 131

CASES CITED: Frigo v Culhaci (unreported, Mason P, Sheller JA and Sheppard AJA, NSWCA, 17 July 1998, BC9803225)
GPI Leisure Corporation (In Liq) v Yuill (1997) 42 NSWLR 225
Van Der Lee v State of New South Wales [2002] NSWCA 286

PARTIES: Nicholas John Ryder (First Plaintiff/First Cross-Defendant)
Protected Equity Investments Pty Ltd ACN 086 671 516 (Second Plaintiff/Second Cross-Defendant)
Peter Frohlich (First Defendant/First Cross-Claimant)
Coastal Capital Ltd ACN 061 336 445 (Second Defendant/Second Cross-Claimant)

FILE NUMBER(S): SC 2314/03

COUNSEL: Mr M Young
(First & Second Plaintiffs/First & Second Cross-Defendants)
Mr R McHugh
(First & Second Defendants/First & Second Cross-Claimants)

SOLICITORS: Grahame Jackson & Associates
(First & Second Plaintiffs/First & Second Cross-Defendants)
Speed and Stracey Lawyers
(First & Second Defendants/First & Second Cross-Claimants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Wednesday 20 September 2006

2314/03 Nicholas John Ryder & Anor v Peter Frohlich & Anor

JUDGMENT (Ex tempore - on tender of document)

1 HIS HONOUR: In these proceedings the defendants seek a Mareva order against the plaintiffs in aid of a judgment for costs which they anticipate will be given in their favour. To found that application the defendants’ solicitors on 8 September 2006 sent to the plaintiffs’ solicitors by facsimile a letter of that date in which they sought, in substance, an undertaking that the defendants would not, without first having given 14 days’ notice, alienate or encumber their assets, including specified real property, to the extent that they do not exceed $444,475, subject to the usual exceptions, and requiring a written undertaking to that effect by close of business on Tuesday 12 September 2006.

2 On 14 September 2006, the plaintiffs’ solicitors sent to the defendants’ solicitors a facsimile, which was plainly expressed to be on a without prejudice basis. The defendants tender that facsimile (MRS9) and the plaintiffs object, invoking the without prejudice privilege contained in Evidence Act 1995 (NSW), s 131.

3 It is convenient to approach the matter in the sequence of the submissions of Mr McHugh, for the defendants/applicants, who argued that the document was not entitled to privilege.

4 First, Mr McHugh submitted that the communication in question was not one “in connection with an attempt to negotiate a settlement of the dispute”, within s 131(1)(a). Reference was made to the judgment of Young J (as his…

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.

Continue reading Ryder v Frohlich

Details

AGLC: Ryder v Frohlich [2006] NSWSC 1324
Case: [2006] NSWSC 1324
Decision Date: 20/09/2006

CaseChat Overview and Summary

In the case of Ryder v Frohlich, the dispute centred around the admissibility of a communication made between the parties during settlement negotiations. The case was heard in the Supreme Court of New South Wales. The plaintiff, Ryder, sought to admit the defendant's communication as evidence of abuse of process, claiming that the communication was a deliberate abuse of power and affected a right of the plaintiff. The defendant, Frohlich, objected to the admission of the communication on the basis that it was a without prejudice communication and therefore privileged.

The central legal issue before the court was whether the without prejudice communication could be admitted as evidence of abuse of process. The court was required to determine if the communication was made in connection with an attempt to negotiate a settlement, whether it affected a right of the plaintiff, and whether it was made in furtherance of a deliberate abuse of power. The court also had to consider the provisions of the Evidence Act 1995 (NSW) and whether the communication fell within the exceptions to the without prejudice privilege.

The court held that the communication was not privileged as it did not meet the criteria for without prejudice communications under the Evidence Act 1995 (NSW). The court found that the communication was not made in connection with an attempt to negotiate a settlement, as it was not made in the course of negotiations but rather in the context of an interlocutory application. Furthermore, the court held that the communication did not affect a right of the plaintiff, as it did not relate to the substantive issues of the case but rather to the procedural aspects. The court also found that the communication was not made in furtherance of a deliberate abuse of power, as there was no evidence of any abuse of power. Consequently, the court excluded the communication as evidence of abuse of process.

The court held that the communication was not privileged and could not be admitted as evidence of abuse of process. No further orders were made.

Orders