Samnakay v Schofield

In Samnakay v Schofield, the appellants, who were purchasers of lots in a proposed subdivision, challenged the lower court's decision that three documents were privileged under the without prejudice rule. The respondents, the proprietors of the land, had entered into contracts of sale with the appellants and other purchasers, but the Planning Commission did not endorse the approval of the subdivision plan within the extended time specified in the contracts. The respondents notified the purchasers that the contracts were terminated and that the lots might be re-offered for sale. The appellants sought to have the respondents' communications with them prior to the termination notice admitted as evidence, arguing that they were not protected by without prejudice privilege. The primary judge held that the communications were without prejudice and therefore privileged.

The legal issue before the court was whether the communications were made for the purpose of attempting to compromise a dispute and therefore privileged, or whether they were made for another purpose, such as proposing a new contract of sale, and therefore not privileged. The court considered the relevant principles and authorities on the without prejudice rule, including the case of JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd, where the court held that an offer made in the course of negotiations to resolve a dispute was privileged, even if the offer was made to obtain a collateral advantage. The court also considered whether the respondents had waived their privilege by putting one of the documents into evidence in earlier proceedings with a different party.

The court held that the communications were without prejudice and privileged. The court found that the respondents' letter of 17 March 2006, which notified the appellants of the termination of the contract, was not a compromise of a dispute but rather a statement of fact. The court also held that the respondents had not waived their privilege by putting one of the documents into evidence in earlier proceedings. The court found that the respondents had not intended to relinquish their privilege and that the document had not been relied upon by the other party in the earlier proceedings.

The court dismissed the appeal and affirmed the lower court's decision that the communications were privileged. The court held that the appellants had not shown that the privilege should be disregarded in the interests of justice. The court did not make any orders as to costs.