Taylor v Port Macquarie-Hastings Council

[2010] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION:

Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 142
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANTS:
John Henry Taylor and Mildred Joy Taylor

RESPONDENT:
Port Macquarie-Hastings Council

FILE NUMBER(S):

30623 of 2005

CORAM:

Biscoe J

KEY ISSUES:

EVIDENCE :- whether anything said at a conciliation conference under s 34 Land and Environment Court Act 1979 is admissible in evidence at a costs hearing in an action for compensation for compulsory acquisition of land or whether the court should exercise its discretion to refuse to admit such evidence.

LEGISLATION CITED:

Civil Procedure Act 2005, s 30(4)
Evidence Act 1995, ss 122, 131, 135(a)
Land and Environment Court Act 1979, s 34
Uniform Civil Procedure Rules 2005, r 20.26(7)(b)

CASES CITED:

Mann v Carnell [1999] HCA 66, 201 CLR 1
ROI Properties Pty Ltd v Council of City of Sydney [2010] NSWLEC 22

DATES OF HEARING:

3 August 2010

EX TEMPORE JUDGMENT DATE:

3 August 2010

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr T S Hale SC with Mr J R Dupree
SOLICITORS
Russo & Partners

RESPONDENT:
Mr T Robertson SC with Mr J Lazarus
SOLICITORS
Donovan Oates Hannaford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 August 2010

30623 of 2005

TAYLOR v PORT MACQUARIE-HASTINGS COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an objection to a question in cross-examination at a costs hearing in an otherwise concluded action for compensation for compulsory acquisition of land. The applicants’ solicitor, Mr Russo, is being cross-examined on paragraph 34 of his affidavit of 15 July 2010 in which he said that in view of what occurred at a conciliation conference (which he misdescribes as a mediation) under s 34 of the Land and Environment Court Act 1979 on 12 February 2010, he did not anticipate that the respondent council would make any further offer of compromise and was surprised when he received an offer of compromise on the afternoon of 15 February 2010, which was a few days before the start of the trial. The apparent relevance of this evidence is to the issue of whether the four day period allowed for acceptance of the offer of compromise was “reasonable in the circumstances” as required by r 20.26(7)(b) of the Uniform Civil Procedure Rules 2005. Mr Russo was not at the conciliation conference but his employed solicitor was.

2 The cross-examiner over objection asked the witness why he was surprised and received an answer that it was because of the council’s intransigence. The cross-examiner then asked a question of the witness about what senior counsel for the applicants had said at the conciliation conference concerning the applicants’ position. Senior counsel for the applicants objected to the question and I now have to rule on the objection.

3 Although the rules of evidence do not apply in proceedings such as these, the parties’ submissions addressed the rules of evidence and I am content to apply them by analogy.

4 The respondent council submits that any privilege as to what was said at the conciliation conference has been waived. The applicants submit that there has been no waiver that would permit such a question to be asked and alternatively that the Court should refuse to admit the evidence under s 135(a) of the Evidence Act 1995 which provides:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party”

5 Anything said at a conciliation conference is not admissible in evidence unless both parties agree: s 34(11) and (12) of the Land and Environment Court Act; ROI Properties Pty Ltd v Council of City of Sydney [2010] NSWLEC 22. Section 34(11) and (12) provide:

“(11) Subject to subsections (10) and (12):
(a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and
(b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.”

6 Similar provisions exists in relation to mediations under s 30(4) of the Civil Procedure Act 2005.

7 These provisions are distinguishable from s 122 of the Evidence Act concerning loss of client legal privilege where a party has acted in a way that is inconsistent with the party objecting to the evidence in that s 122 expressly adopts the common law principles relating to waiver of the privilege established by Mann v Carnell [1999] HCA 66, 201 CLR 1. These provisions also contain none of the exceptions to adducing evidence of settlement negotiations listed in s 131 of the Evidence Act, including an exception where the communication is relevant to determining liability as to costs.

8 Assuming that the concept of waiver applies to things said at a conciliation conference under s 34 of the Land and Environment Court Act, I do not consider that the affidavit evidence of the solicitor to which I have referred constitutes a waiver which permits unfettered enquiry into what occurred at the conciliation conference. If I am in error, then pursuant to s 135 of the Evidence Act I would refuse to admit the evidence sought by the question. In the latter respect, I give substantial weight to the legislative intention that communications at a conciliation conference are not admissible in any proceedings: s 34 Land and Environment Court Act. The evidence of the solicitor that he did not anticipate and was surprised to receive an offer of compromise is of peripheral relevance and no real significance and, I think it would be unfairly prejudicial to the applicants for it to become the doorway through which communications at the conciliation conference lost their inadmissibility and became evidence in the proceedings. In my view, the probative value of such evidence is outweighed by the danger that it might be unfairly prejudicial to the applicants. Accordingly, I uphold the objection and reject the question.

06/08/2010 - typographical error - Paragraph(s) coversheet