| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
COMMERCIAL COURT
COMMERCIAL LIST
S CI 2011 04332
| SLEA PTY LTD (ABN 16 081 276 811) | Plaintiff |
| v | |
| CONNECTIVE SERVICES PTY LTD (ACN 107 366 496) | First defendant |
| CONNECTIVE OSN PTY LTD (ACN 106 761 326) | Second defendant |
| MILLSAVE HOLDINGS PTY LTD (ACN 115 160 097) | Third defendant |
| CONNECTIVE GROUP PTY LTD (ACN 162 397 060) | Fourth defendant |
| CONNECTIVE BROKER SERVICES PTY LTD (ACN 161 731 111) | Fifth defendant |
| CONNECTIVE LENDER SERVICES PTY LTD (ACN 161 731 460) | Sixth defendant |
| CONNECTIVE FUNDER SERVICES PTY LTD (ACN 161 732 645) | Seventh defendant |
| CONNECTIVE GROUP IP HOLDINGS (NO 1) PTY LTD (ACN 165 282 084) | Eighth defendant |
| CONNECTIVE GROUP IP HOLDINGS (NO 2) PTY LTD (ACN 165 281 925) | Ninth defendant |
| MARK SEAMUS HARON | Tenth defendant |
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JUDGE: | ALMOND J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2016 |
DATE OF RULING: | 4 May 2017 |
CASE MAY BE CITED AS: | Slea Pty Ltd v Connective Services Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 232 |
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EVIDENCE – Exclusion of evidence of settlement negotiations – Evidence Act 2008 (Vic) ss 131(1)(a), 131(2)(g) – Statements made by solicitor at mediation – Whether statements made ‘in connection with an attempt to negotiate a settlement of the dispute’ – Objective or neutral facts – Whether statements necessary to contradict or qualify evidence that has been adduced that is likely to mislead the court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M O’Bryan QC Ms K Foley | Arnold Bloch Leibler |
| For the First to second and fourth to ninth defendants | Mr A Myers QC Mr B Quinn QC Mr D Guidolin Mr E Gisonda | Quinn Emmanuel Urquhart & Sullivan |
| For the Third defendant | Mr S Hay | HWL Ebsworth |
| For the Tenth defendant | Mr W Forrester | Obst Legal |
HIS HONOUR:
Background
By summons filed 17 August 2016 in this proceeding (the oppression proceeding) the plaintiff, Slea Pty Ltd (Slea), seeks an advance ruling that evidence proposed to be adduced by the Connective company defendants (collectively, Connective) and contained in:
(a) paragraph 215 of the witness statement of Glenn Andrew Lees dated 16 May 2016;
(b) paragraph 64 of the witness statement of Graham Edward Maloney dated 13 May 2016; and
(c) paragraph 14 of the affidavit of Marcel John (Beau) Deleuil dated 13 June 2016,
is inadmissible.[1] Slea seeks consequential orders requiring excision of the relevant paragraphs.
[1]Pursuant to s 192A of the Evidence Act 2008 (Vic).
Slea contends that communications recorded in the above paragraphs were made between persons in dispute (in a separate proceeding) in connection with an attempt to negotiate a settlement of that dispute and, pursuant to ss 131 and 134 of the Evidence Act2008 (Vic) (Act), ought not to be permitted to be adduced in this proceeding or in related proceeding S ECI 2016 001168 (the pre-emptive rights proceeding).
In response, Connective contends that:
(a) the disputed communications were merely neutral…
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- Case
- [2017] VSC 232
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the statements made by Connective's solicitor during mediation qualified for exclusion under sections 131(1)(a) and 131(2)(g) of the Evidence Act. The legal question hinged on whether these statements were made in connection with an attempt to negotiate a settlement and whether they should be considered objective or neutral facts necessary to contradict or qualify evidence that might mislead the court. Slea argued that the statements were necessary to counter misleading evidence presented by Connective, while Connective maintained that the statements were privileged and should not be admitted.
In its ruling, the court found that the statements made during mediation were indeed in connection with an attempt to negotiate a settlement and thus fell within the scope of the exclusionary provisions of the Evidence Act. However, the court also acknowledged that these statements might be necessary to contradict or qualify evidence that was likely to mislead the court. Consequently, the court balanced the exclusionary provisions with the need to prevent misleading evidence, ultimately determining that the probative value of the statements outweighed their prejudicial effect. As a result, the court allowed the evidence to be admitted.
The court's final orders included the admission of the disputed statements as evidence in the proceedings, thereby permitting Slea to use these statements to counter Connective's evidence that was likely to mislead the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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