Tolman Holdings Pty Ltd v Lyra
[2005] WASC 260
TOLMAN HOLDINGS PTY LTD -v- LYRA & ORS [2005] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 260 | |
| Case No: | CIV:1426/2005 | 25 OCTOBER 2005 | |
| Coram: | JENKINS J | 25/11/05 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Evidence of what was said at the pre-trial conference on 19 October 2004 in Local Court action No 20633 of 2003 is inadmissible in this matter | ||
| B | |||
| PDF Version |
| Parties: | TOLMAN HOLDINGS PTY LTD (ACN 009 125 731) GAVIN LYRA MICHELLE LYRA BUILDERS' REGISTRATION BOARD BUILDING DISPUTES TRIBUNAL |
Catchwords: | Evidence Preliminary issue Admissibility of anything said at a pre-trial conference in the Local Court Whether the section prohibiting the admission of what occurred at a pre-trial conference saved by the repeal of the Local Courts Act Abuse of process |
Legislation: | Courts Legislation Amendment and Repeal Act 2004 (WA), s 4, s 7 Interpretation Act 1984 (WA), s 37, s 37(c), s 37(d), s 37(1)(c), s 37(1)(d) Local Courts Act 1904 (WA), s 45B, s 45B(8), s 45B(9) Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court (Civil Proceedings) Rules 2005 (WA), Pt IX, r 43(2) Magistrates Court Act 2004 (WA) Motor Car Act 1958 (Vic), s 80F Supreme Court Act 1935 (WA), s 71(1), s 71(3) |
Case References: | R v Carroll [2002] 213 CLR 635 Sutton v Bradshaw [1988] VR 920 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 Beswick v Beswick [1968] AC 58 Clarkson Booker Ltd v Andjel [1964] 2 QB 775 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Goldsmith v Sperrings Ltd [1977] 2 All ER 566 Harrison v Hocking [2000] WASC 188 Hay v Butler & Crooks (1991) 7 WAR 333 Jones v Bartlett (2000) 205 CLR 166 Morris v Wentworth-Stanley [1999] QB 1004 Neil & Ors v Nugent & Ors [2005] WASC 166 Reid v Howard (1995) 184 CLR 1 Spautz v Gibbs (1990) 21 NSWLR 230 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Wan v Sweetman (1998) 19 WAR 94 White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 Whitfords Beach Pty Ltd v Gadsdon (1992) 6 WAR 537 Williams v Spautz (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GAVIN LYRA
MICHELLE LYRA
First Defendants
BUILDERS' REGISTRATION BOARD
BUILDING DISPUTES TRIBUNAL
Second Defendants
Catchwords:
Evidence - Preliminary issue - Admissibility of anything said at a pre-trial conference in the Local Court - Whether the section prohibiting the admission of what occurred at a pre-trial conference saved by the repeal of the Local Courts Act - Abuse of process
(Page 2)
Legislation:
Courts Legislation Amendment and Repeal Act 2004 (WA), s 4, s 7
Interpretation Act 1984 (WA), s 37, s 37(c), s 37(d), s 37(1)(c), s 37(1)(d)
Local Courts Act 1904 (WA), s 45B, s 45B(8), s 45B(9)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA), Pt IX, r 43(2)
Magistrates Court Act 2004 (WA)
Motor Car Act 1958 (Vic), s 80F
Supreme Court Act 1935 (WA), s 71(1), s 71(3)
Result:
Evidence of what was said at the pre-trial conference on 19 October 2004 in Local Court action No 20633 of 2003 is inadmissible in this matter
Category: B
Representation:
Counsel:
Plaintiff : Mr K C B Staffa
First Defendants : Mr N D Billington
Second Defendants : No appearance
Solicitors:
Plaintiff : Kevin Staffa
First Defendants : Cahill Billington
Second Defendants : Marc Mannes
(Page 3)
Case(s) referred to in judgment(s):
R v Carroll [2002] 213 CLR 635
Sutton v Bradshaw [1988] VR 920
Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228
Case(s) also cited:
Beswick v Beswick [1968] AC 58
Clarkson Booker Ltd v Andjel [1964] 2 QB 775
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Goldsmith v Sperrings Ltd [1977] 2 All ER 566
Harrison v Hocking [2000] WASC 188
Hay v Butler & Crooks (1991) 7 WAR 333
Jones v Bartlett (2000) 205 CLR 166
Morris v Wentworth-Stanley [1999] QB 1004
Neil & Ors v Nugent & Ors [2005] WASC 166
Reid v Howard (1995) 184 CLR 1
Spautz v Gibbs (1990) 21 NSWLR 230
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Wan v Sweetman (1998) 19 WAR 94
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169
Whitfords Beach Pty Ltd v Gadsdon (1992) 6 WAR 537
Williams v Spautz (1992) 174 CLR 509
(Page 4)
1 JENKINS J: This is the trial of a preliminary issue. By an amended originating summons dated 31 October 2005 the plaintiff applies for injunctions and declarations against the first and second defendants. The matter arises out of a dispute between the plaintiff and the first defendants over the plaintiff's performance under a home building contract and the method by which the first defendants have sought to have that dispute resolved.
2 The preliminary issue is whether the plaintiff may adduce evidence of what was said at a pre-trial conference in the Perth Local Court on 19 October 2004 in action No 20633 of 2003 ("the first Local Court action") in support of its amended originating summons. On 3 August 2005, at the request of the first defendants, a Master ordered that this issue be heard as a preliminary issue. At that time the issue related to proceedings on the originating summons filed 13 April 2005. Given that the parties have consented to amendments to the originating summons it is appropriate that I have regard to the amended originating summons.
3 The evidence before me consists of the affidavit of Peter John Fairbrother sworn 12 April 2005 and the supplementary affidavit of the same deponent sworn 25 July 2005. The parties have not provided an agreed statement of facts but I understand that the facts contained in these affidavits are not substantially in dispute. I will proceed on that basis. There are also two affidavits which contain some material which the first defendants say is inadmissible. They are the affidavit of Anthony John Goldfinch sworn 10 October 2005 and the affidavit of Robert Anthony Nagle sworn the same date. The first defendants objected to me reading these affidavits because they contain evidence regarding what took place at the pre-trial conference that is at the centre of this dispute. I will only have regard to the disputed material in these affidavits if I conclude that they are admissible and relevant to the hearing of this preliminary issue.
Background
4 On 3 August 2002 the first defendants entered into a contract to build a house with a builder named in the contract as Palmerston Building Co. It seems that they thought that they had entered into a contract with a firm called Nagle & Nagle Constructions ("Nagle & Nagle") or associated individuals. I need not go into the reasons for this belief. In fact Palmerston Building Co is the trading name of the plaintiff. However, Nagle & Nagle did work connected to the contract.
5 In about September 2003 the first defendants lodged a complaint with the Builders' Registration Board against Nagle & Nagle for
(Page 5)
- unsatisfactory building work. During the course of the inquiry into that complaint the first defendants were told that their contract was with the plaintiff.
6 On 21 November 2003 Nagle & Nagle commenced the first Local Court action against the first defendants seeking the sum of $24,946.22 for goods delivered and work done on the construction of the house. The particulars of claim allege that Nagle & Nagle and the first defendants had entered into the contract to build the house.
7 Following an inspection and a notice of assessment the Building Registration Board issued an order to remedy dated 15 December 2003 requiring the plaintiff to rectify specified faulty or unsatisfactory building work.
8 On 27 July 2004 the first defendants joined the plaintiff as a third party to the first Local Court action. The third party notice claimed that the first defendants had a right to be indemnified by the plaintiff in respect to Nagle & Nagle's claim. The pleaded grounds for that right were that the work under the building contract had not been completed, the Building Disputes Tribunal had determined that the plaintiff, as holder of the building licence, was the appropriate party to carry out the rectification work and had made orders that it carry out that work within a certain period and, despite that period having now expired, the rectification work had not been completed.
9 On 14 October 2004 the first defendants filed particulars of defence in the first Local Court action. They pleaded that they had entered into a contract with Nagle & Nagle to build the house and denied that any monies were outstanding under the contract. They further pleaded that as an unregistered builder Nagle & Nagle were not entitled to recover any fee or charge under a building contract. They counterclaimed for the cost of remedial work.
10 On or about the same date, the first defendants discontinued the third party claim against the plaintiff in the first Local Court action. Their solicitor advised the plaintiff's solicitor that he had been instructed to proceed with a defence of that claim based on the alleged inability of an unregistered builder to claim any fees or charges in a court. As this was alleged to be a complete defence the solicitor said that the first defendants did not intend to proceed with the third party notice. Nagle & Nagle's solicitor was merely advised that the third party notice had been discontinued.
(Page 6)
11 On 19 October 2004 a pre-trial conference was held in the Local Court between Nagle & Nagle and the first defendants. Nagle & Nagle were represented at that pre-trial conference by a legal practitioner, Mr Goldfinch, and the first defendants were represented by Mr Darge of Corser & Corser. Robert Anthony Nagle, who along with Robert Alfons Nagel trades as Nagel & Nagel was also present. It seems that terms of settlement were agreed between the parties at the pre-trial conference.
12 On 18 November 2004 Robert Anthony Nagle and Robert Alfons Nagle ("the two Nagle men") on the one part and the first defendants on the other part, entered into a deed of release pursuant to which the first Local Court action was resolved ("the deed of release"). The recitals to the deed include that by written contract dated 3 August 2002 the two Nagle men trading as Nagle & Nagle agreed to construct the house for the first defendants and that various disputes had arisen between the parties in relation to that building contract. The building contract is recited as the same building contract that the first defendants had entered into with the plaintiff. It may be remarked that the whole series of events is peculiar but that does not answer the preliminary issue. The deed witnesses that the parties agree that the first Local Court action should be dismissed and they agree to sign a minute of consent orders dismissing the action and the counterclaim with no orders as to costs. Further, the first defendants agree to pay the two Nagle men the sum of $1,000 in full satisfaction of their plaint and any liability for costs in the plaint and the counterclaim. Relevantly, the following clauses are also contained in the deed:
"6. [The first defendants] hereby releases and discharges [the two Nagle men] from all claims, demands, suits, actions, liabilities for payment or otherwise (including costs) or proceedings or any kind whatsoever which, in any way, arise out of or are concerned with, relate to or are incidental to the plaint or the counterclaim or the building contract which [the two Nagle men] now have, have had, or at any time in the future may have with the intent that all claims, demands, suits, actions, liabilities and proceedings which [the first defendants] may have against [the two Nagle men] howsoever arising shall be at an end and this deed may be pleaded in bar by [the two Nagle men] to any such claim, demand, suit, action, liability or proceedings.
…
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- 11. This deed constitutes the sole and entire agreement between the parties regarding the subject matters of the deed and supersedes all prior understandings, deeds, agreements, conditions and representations relating to those matters whether oral, written or express or implied."
13 Robert Anthony Nagel has deposed that he entered into the deed of release in the belief that he would have no further involvement with the first defendants or with any proceedings in relation to the building contract in issue.
14 On 23 December 2004 the first defendants commenced a new Local Court action against the plaintiff. The claim is based on items which the first defendants contend the plaintiff has not done pursuant to the building contract that the Building Disputes Tribunal had determined existed between the first defendants and the plaintiff ("the second Local Court action").
15 The plaintiff filed a defence and counterclaim to the second Local Court action on 30 March 2005. In it the plaintiff admits that there was a written contract dated 3 August 2002 between the plaintiff and the first defendants for the construction of a house. The plaintiff also pleads that the deed of release released the two Nagle men from all the first defendants' claims against Nagle & Nagle referred to in the deed. Further, if at the time of the making of the deed, the plaintiff had any liability to the first defendants, which is not admitted, then its liability was joint and several with that of the two Nagle men. It continues, that the effect of the deed was to discharge and release the two Nagle men and was also to discharge the plaintiff from any liability it had to the first defendants. In the premises it is pleaded that the first defendants have no ability to bring the second Local Court action.
16 The pleading that the plaintiff's liability was joint and several with that of the two Nagle men is somewhat different from the position that was put by the plaintiff's solicitor in its correspondence in December 2004. The earlier position was that the settlement witnessed by the deed of release was between the first defendant and the two Nagle men but that it was a term of the settlement that the first defendants would not take further action against the plaintiff. At times during the course of the submissions the plaintiff's submissions appeared to verge towards this earlier position. However, it seems to me that I must determine the
(Page 8)
- preliminary issue on the plaintiff's defence as pleaded in the second Local Court action and particularised in the amended originating summons.
17 Further, the plaintiff contends in its defence that the settlement witnessed by the deed of release covers not only the claim being made by the plaintiffs in the second Local Court action but also the obligation of the plaintiff to comply with the orders to remedy that have been issued by the Building Disputes Tribunal.
18 The pleading in the defence that there was a contract between the plaintiff and the first defendants is to be contrasted to par 17 of the affidavit of Peter John Fairbrother, a director of the plaintiff, wherein he deposes that the contract was between Nagel & Nagel and the first defendants.
19 The plaintiff commenced the proceedings in this Court in April 2005. There are a number of aspects to these proceedings. First, the plaintiff seeks an order that the second Local Court action be transferred to the Supreme Court. The determination of the preliminary issue does not directly affect that application. Secondly, it seeks an injunction restraining the first defendants from further instructing Corser & Corser to act as their solicitor in respect to these issues. The alleged justification for that is that the plaintiff says that in order to prove that the settlement achieved at the pre-trial conference also resolved issues between the plaintiff and the first defendants it should be permitted to lead evidence as to what occurred at the pre-trial conference. The plaintiff submits that Mr Darge of Corser & Corser is a potential witness in that he could be required to give evidence as to what occurred at the pre-trial conference. Consequently, Corser & Corser have a conflict and the injunction should be ordered.
20 The plaintiff also seeks an injunction restraining the first defendants from pursuing its claims before the second defendants. Again the alleged basis for this injunction is that the settlement witnessed by the deed of release resolved those issues between the first defendants and the plaintiffs. The plaintiff says again that it should be allowed to call evidence as to what occurred at the pre-trial conference in pursuit of that application.
21 The plaintiff seeks another injunction that the second defendants be restrained from hearing the complaints of the first defendants against the plaintiff on the same basis.
(Page 9)
22 The recent amendments to the originating summons claim a declaration that the plaintiff has the benefit of the terms of the deed of release and a declaration pursuant to the deed of release that the plaintiff is released from all liability to the first defendants arising out of or concerned with the construction of the dwelling. The plaintiff submits that it is necessary for them to adduce evidence as to what was said at the pre-trial conference in support of this application.
23 At the hearing of this matter I was also advised by the plaintiff that it may apply to further amend the amended originating summons to include a claim that it is an abuse of the court process for the first defendants to pursue any of their claims against the plaintiff because the plaintiff is entitled to the benefit of the terms of the deed of release because the first defendants themselves have said, amongst other things, that Nagle & Nagle were the plaintiff's agent.
24 The first defendants requested that the admissibility of what was said at the Local Court pre-trial conference be determined as a preliminary issue as the answer may affect the ability of the first defendants' current solicitors to continue to act in this matter. It also submitted that the determination of the preliminary issue would resolve the issue as to whether at the final hearing of this matter the plaintiff will be able to adduce evidence of what was said at the pre-trial conference.
The Law
25 An interesting aspect of this matter is that at the time the pre-trial conference was held in the Local Court the Local Courts Act 1904 (WA) ("the Local Courts Act"), s 45B(8) had effect. However, the Local Courts Act has since been repealed. Section 45B(8) said:
"Subject to subsection (9), evidence of anything said or done or any admission made at any pre-trial conference is not admissible in any court."
26 Subsection (9) provided that nothing in s (8) prevented a court from admitting evidence of anything said or done or any admission made at a pre-trial conference for the purpose of enforcing any order made at a pre-trial conference or upon the trial of a person for an offence committed at a pre-trial conference.
27 Thus, the first issue for me to decide is whether s 45B(8) still has effect given the repeal of the Local Courts Act. The plaintiff was content
(Page 10)
- for me to assume, without deciding, that it did. However, in my view it would be inappropriate for me to do that.
28 The Courts Legislation Amendment and Repeal Act 2004 (WA), ("the Courts Legislation Amendment and Repeal Act") s 4 repealed the Local Courts Act. The Courts Legislation Amendment and Repeal Act came into effect on 1 May 2005. It has a transitional provision in respect to actions or matters pending before a Local Court on the commencement of the Courts Legislation Amendment and Repeal Act. However, that transitional provision does not apply because the first Local Court action was concluded before 1 May 2005. No other transitional provision appears to be relevant.
29 The Magistrates Court Act 2004 (WA) came into effect on 2 May 2005 and replaced some provisions of the Local Courts Act. It does not contain a provision similar to s 45B(8).
30 Rather, the Magistrates Court (Civil Proceedings) Rules 2005 (WA) ("the Magistrates Court (Civil Proceedings) Rules"), Pt IX deals with pre-trial conferences. These Rules also commenced on 2 May 2005. The term "pre-trial conference" is defined in the Rules to mean a pre-trial conference held under Pt IX of the Rules. Prima facie a pre-trial conference held under the Local Courts Act does not come within this definition unless the action in which it was held is a pending proceeding and is caught by the transitional provision. Rule 43 of the Rules deals with the status of things said or done at a pre-trial conference. Sub-rule (2) states:
"Anything said or done by a party for the purpose of attempting to settle a case at a pre-trial conference is to be taken to be said or done without prejudice to any evidence or submission that the party -
(a) has adduced or made; or
(b) may subsequently adduce or make,
in or in respect of the proceedings ... ".
31 The effect of r 43(2) is that anything said or done at a pre-trial conference is without prejudice to any subsequent evidence or submission from that party and thus is not binding upon a party in or in respect of the proceedings.
(Page 11)
32 Despite its repeal, the first defendants say that the Local Courts Act, s 45B(8), remains in effect in respect to pre-trial conferences held in complete Local Court actions because of the general savings on repeal provided for by the Interpretation Act 1984 (WA), ("the Interpretation Act") s 37(1), which relevantly states:
"37. General savings on repeal
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
...
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
...
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
- Section 37 only preserves rights created, acquired, accrued, established or exercisable prior to the relevant repeal and obligations and liabilities imposed, created or incurred prior to the relevant repeal.
33 Section 37 must be read in light of the common law rule of construction that an amending or repealing statute which is procedural is to be construed as retrospective in its operation, unless a contrary intention appears: Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228 at 245 -246 per Gibbs J.
34 Counsel did not refer me to any decision on the meaning of the Interpretation Act, s 37(c) or (d). Similar provisions were considered by the Victorian Full Court in Sutton v Bradshaw [1988] VR 920. In that case the question for the determination of the court was whether the Motor Car Act 1958 (Vic), ("the Motor Car Act"), s 80F providing that a certificate of the percentage of alcohol indicated by a breathalyser
(Page 12)
- instrument which was signed by the police officer who carried out the analysis was admissible in evidence as proof of the percentage of blood alcohol in the applicant's blood, survived the repeal of the Motor Car Act. The prosecution had sought to tender the certificate in respect to a prosecution under the Motor Car Act which had been commenced prior to its repeal, but the hearing of which occurred subsequent to its repeal. The Full Court found that s 80F survived repeal, either by necessary implication or by the application of the provision of the Victorian Interpretation Act equivalent to the Interpretation Act, s 37. The discussion in that case of relevant principles has been of assistance to me.
35 In my opinion Yrttiaho's case is distinguishable from this case. The Magistrates Court (Civil Proceedings) Rules state the law with respect to the status of pre-trial conferences held under those rules. They say nothing about the status of pre-trial conferences held under the Local Courts Act. The Magistrates Court (Civil Proceedings) Rules do not have, expressly or by implication, any retrospective application to completed Local Court actions, except to the extent expressly provided for in the transitional provision in the Courts Legislation Amendment and Repeal Act. The common law principle, enunciated and explained in Yrttiaho's case, is not relevant to the issue of the status of things said or done at a pre-trial conference held under the Local Courts Act in an action that had been completed by the time the Local Courts Act was repealed. Thus, the issue remains as to whether the Local Courts Act, s 45B(8) is saved by the Interpretation Act, s 37(1) or by necessary implication?
36 In my opinion, s 45B(8) is preserved by the Interpretation Act, s 37(1)(c). Section 45B(8) created a right or privilege at the time of the holding of the pre-trial conference in favour of all present at it not to have their words or actions used in a court except in the limited exceptions referred to in s (9). This right or privilege accrued at the time the pre-trial conference was held and, therefore, existed prior to the repeal of the Local Courts Act. Consequently, the repeal of s 45B(8) did not affect the right or privilege.
37 Further, an argument, such as that propounded in Sutton's case, can also be made for an implied saving of repealed provision. The Magistrates Court (Civil Proceedings) Rules, r 43(2) provide that anything said or done at a pre-trial conference held under those Rules is taken to be said or done "without prejudice" to any evidence or submission that the party has adduced or made or may subsequently adduce or make in or in respect of the proceedings. I construe this section as meaning that what is said or done at a pre-trial conference held under
(Page 13)
- the new provisions cannot be used as an admission by a party or be admitted into evidence in or in respect to the proceedings. Although differently worded, its effect is very similar to s 45B(8). I note that the privilege in the Magistrates Court (Civil Proceedings) Rules is governed by the phrase "in or in respect of the proceedings", whereas s 45B(8) is not. It is unnecessary for me to determine what effect those words have. It is sufficient for me to say that they do not indicate any significant change of position on the part of the legislature. That being that what is said or done in a pre-trial conference is generally privileged.
38 As I have already noted, this provision applies not only to matters commenced under the new Act and Rules but also to matters pending in the Local Court at the time of the commencement of the new Act and Rules.
39 It would be entirely contrary to logic to suggest that the legislature, by these new provisions, provided that things said or done at a pre-trial conference should not be used against a party in or in respect of pending and new proceedings but intended to repeal a similar provision in respect to pre-trial conferences held in completed Local Court proceedings. In my opinion, the legislature intended for s 45B(8) to continue to apply to what was said or done in pre-trial conferences conducted in Local Court actions which were completed by the time that Act was repealed. This conclusion is based upon the application of s 37 and on the implication discerned from a consideration of the provisions of the Local Court Act and the Magistrates Court (Civil Proceedings) Rules.
40 Despite the apparently clear terms of s 45B(8), the plaintiff submits that the prohibition in that section cannot apply and was never intended:
"(a) To prevent a person seeking to enforce the terms of a settlement made at or arising out of or incidental to a pre-trial conference; or
(b) to prevent a person asking the court to make a declaration as to the effect of a settlement between the parties resulting from a pre-trial conference;
(c) … to be used to prevent an abuse of the legal process by one of the parties to the pre-trial conference process being addressed by the court."
41 It is convenient to deal with (a) and (b) together as they raise similar issues.
(Page 14)
42 In respect to these paragraphs the plaintiff says that it is entitled to the benefit of the deed of release between the first defendants and the two Nagle men because of:
1. The alleged admissions that the first defendants' solicitor has expressly made in correspondence since the deed of release was entered into;
2. the first defendants' particulars of claim in the second Local Court action which plea that, in effect, Robert Anthony Nagle was acting as an agent for the plaintiff when he signed the building contract; and
3. what may have been said at the pre-trial conference by the first defendants or their solicitors to lead Robert Anthony Nagle to believe that the deed of release was "the end of the matter" and that he would have no further involvement with the first defendants or with any proceedings in relation to the building contract.
- The plaintiff submits that Robert Anthony Nagle's belief that the deed of release brought all disputes regarding the building contract to an end is based upon something that was said at the pre-trial conference upon which it can also rely.
43 I note that the plaintiff wishes to take advantage of alleged admissions by or on behalf of the first defendants to the effect that the two Nagle men at all relevant times were acting as the agents of the plaintiff. The plaintiff does not assert or set out to prove that the two Nagle men were acting as their agents. Indeed, the plaintiff's counsel was careful to say that the plaintiff did not assert that the two Nagle men were its agents. The plaintiff's argument rather seems to be that if the first defendants entered into a settlement with the two Nagle men believing that the two Nagle men were agents of the plaintiff, then the plaintiffs are entitled to the benefit of the settlement, whether or not that belief was correct.
44 It is not appropriate for me upon the hearing of a preliminary issue to determine the merits of this somewhat unusual argument. The issue for me is whether, in pursuance of that argument, the plaintiff is entitled to adduce evidence of what occurred at the pre-trial conference.
45 In my opinion the prohibition in s 45B(8) applies so as to prevent such evidence being given. The prohibition does not just relate to the parties to the pre-trial conference or the relevant Local Court action. This
(Page 15)
- is clear not only because the section is expressed in general terms, but also because s (9) would be unnecessary if s (8) only bound the parties. Further, the prohibition applies to "any court" not just the Local Court or the Magistrates Court.
46 As to the admissibility of what is said or done at a pre-trial conference in enforcement proceedings or in proceedings to declare the effect of a settlement, given the terms of s 45B(8) I am of the view that Parliament did not intend the parties to rely upon what was said or done at a pre-trial conference to evidence in a court a settlement of a Local Court action. If Parliament had intended to permit the parties to rely upon what occurred at the pre-trial conference, then I presume it would have made an exception for that purpose. For example, the Supreme Court Act 1935 (WA), s 71(3), provides exceptions to the prohibition in s 71(1) of anything said or done at a mediation being admitted in any proceedings before any court, tribunal or body. The exceptions state that s (1) does not affect the admissibility of any evidence or document in proceedings if there is a dispute in the proceedings as to whether or not the parties to the mediation entered into a binding agreement settling all or any of their differences and the evidence or document is relevant to that issue. No such exception is provided for in the Local Courts Act.
47 The intention of the Parliament in enacting the Local Courts Act, s 45B(8) appears to have been to allow the parties the freedom to express themselves at a pre-trial conference in order to facilitate settlement without concerns that what was said would be used against them later. In such a process there is a risk that a party will say or do something at a pre-trial conference which leads another party to agree to settle the matter and then subsequently the first party will deny the representation, settlement or its terms. On the plaintiff's argument this is contrary to the interests of justice and courts should be prepared to admit evidence of what occurred at the pre-trial conference in order to enforce a settlement. In my opinion this would be contrary to the statutory regime. A party to a proposed settlement at a pre-trial conference in the Local Court knew that what was said or done at the pre-trial conference could not be adduced in evidence. In order to protect their interests the parties had to ensure that the settlement was evidenced in a deed or the like and that all relevant representations and terms of settlement were included in the document evidencing the settlement. If the settlement was not evidenced in a later document, neither party was bound by what they said or did at the pre-trial conference and they may proceed to prosecute or defend the claim. This appears to me to be the process allowed for by statute. To
(Page 16)
- submit otherwise misconstrues the nature of a pre-trial conference under the Local Courts Act and ignores the clear terms of s 45B(8).
48 The same argument applies if there is mere doubt about the terms of a settlement arrived at during a pre-trial conference. The terms of s 45B(8) were clear that, if the parties were unable to finalise a settlement agreed to at a pre-trial conference, they could not seek to enforce what they alleged was agreed to at the pre-trial conference by adducing evidence of what was said or done at that conference.
49 As to (c), the plaintiff submits that the court has an inherent power to prevent an abuse of its processes. It says that if it is necessary to admit evidence of what was said or done at a pre-trial conference to prevent such an abuse of process, the court is not bound by the prohibition in s 45B(8).
50 The plaintiff's counsel articulated the abuse of process argument in the following manner, TS 64:
"What we say is it doesn't matter whether you accept [the first defendants'] assertion that Nagle was our agent or whether the court accepts the position that both Nagle and [the plaintiff] had a contractual relationship with [the first defendants], in either case the [first defendants'] conduct in pursuing a claim against [the plaintiff] is an abuse of process, either because it elected to sue an agent, ... or because it made a settlement with one of two jointly liable parties and in either case the settled case law is you cannot them pursue the other party because to do so is an abuse of process ... "
51 There is only a difference of degree in the plaintiff's submission in respect to pars (a) and (b), as opposed to its submission in respect to (c).
52 The plaintiff submits that the first defendants in suing the plaintiff in the second Local Court action, have, in effect, commenced proceedings that are an abuse of process, given what was said or done at the pre-trial conference in the first Local Court action. This is because at that conference it believes that the first defendant made a representation upon which Nagle & Nagle relied and either asserted that Robert Anthony Nagle was the plaintiff's agent or that it settled with one of two jointly liable parties.
53 As I have previously said, I do not wish to go into the merits of the plaintiff's case. The issue for me is whether, when there is an allegation
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- of an abuse of process of the nature raised by the plaintiff in this case, does the court have an inherent jurisdiction to admit evidence of what was said or done at a pre-trial conference held in the Local Court despite the prohibition in s 45B(8)?
54 The plaintiff referred to a number of authorities with respect to the court's power to prevent an abuse of process and the nature of the tort of abuse of process. However, none of those authorities dealt with the question as I have framed it.
55 In my view it is not an abuse of the processes of this Court or of the Local Court for a party to say or do one thing at a pre-trial conference and then to act so as to deny its representation or the terms of a settlement agreed to at the pre-trial conference, unless its conduct amounts to a criminal offence. This flows from what I have said earlier about the nature of a pre-trial conference and its non-binding effect on a party. It would be quite contrary to the scheme of the Local Courts Act to allow a party to bring an action based on an abuse of process in respect to something that was said or done at a pre-trial conference when the Local Courts Act makes it abundantly plain that parties cannot rely upon what was said or done at a pre-trial conference unless the limited exceptions in s 45B(9) applies.
56 The plaintiff argues from first principles that Parliament would not seek to fetter the court's inherent powers and thus the prohibition in s 45B should not be read as doing so. Parliament may legislate so as to deprive a superior court of its jurisdiction. However, the intention to do so must appear expressly or by necessary implication: R v Carroll [2002] 213 CLR 635 at [145] per McHugh J.
57 It is not in dispute that this Court has an inherent power to prevent an abuse of its processes: R v Carroll (supra). However, that is not to say that the Parliament may not by express terms provide that some words or actions are privileged and are not admissible before a court. It has done so in this case. There is no warrant for this Court to deny the effect of the clear and unambiguous words of s 45B(8) especially if it is accepted that Parliament did not intend what was said or done at a pre-trial conference in the Local Court to have legal effect except in the limited exceptions referred to in s (9).
58 Consequently, evidence of what was said at the pre-trial conference on 19 October 2004 in Local Court action No 20633 of 2003 is inadmissible in this matter.
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