CITATION: Van Der Lee & Ors. v. State of New South Wales & Ors. [2002] NSWCA 286 FILE NUMBER(S): CA 40351/02 - 40358/02 HEARING DATE(S): 26 July 2002 JUDGMENT DATE:
30 August 2002PARTIES :
Gysbertus Wilhelmus van der Lee, Michael McConnell, Peter Wright, Andrew Griffiths and John Karl Hagley - claimants
State of New South Wales; The Minister Administering the National Parks & Wildlife Act 1974; Roads & Traffic Authority of New South Wales - opponentsJUDGMENT OF: Mason P at 1; Hodgson JA at 26; Santow JA at 68
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :SC20349/00; 20362/01; 20355/00; 20126/00; 20007/01; 20650/00; 20704/00 LOWER COURT
JUDICIAL OFFICER :Adams J
COUNSEL: Mr. R.J. Ellicott QC with Mr. D. Stack for claimants
Mr. B. Walker SC with Mr. S.A. Gregory and Mr. M. Meek for opponentsSOLICITORS: Deacons, Sydney for claimants
Government Insurance Office of NSW for opponentsCATCHWORDS: EVIDENCE - Privilege - Without prejudice communications attempting to negotiate a settlement of a dispute - Where such communications are alleged to evidence abuse of process - Whether admissible - PROCEDURE - Abuse of process - Proceedings against employees of deregistered company - Alleged purpose of obtaining money from holding company - Reasonable grounds for bringing proceedings against employees and against holding company - Whether proceedings against employees an abuse of process. LEGISLATION CITED: Evidence Act 1995, ss.11, 125, 139. CASES CITED: Adams v Cape Industries plc [1991] 1 AllER 929
Briggs v. James Hardie & Co. Pty. Ltd. (1989) NSWLR 549
Citicorp Aust. Ltd. v. Cirillo [2000] SASC 219
In Re Daintrey [1893] 2 QB 116
Dataquest (Australia) Pty. Ltd. v. Dataquest Inc., Tamberlin J, FCA 8/8/96
Dowling v. Colonial Mutual Life Assurance Society Ltd. (1915) 20 CLR 509
Egan v. Willis (1996) 40 NSWLR 650
Field v. Commissioner of Railways (1957) 99 CLR 285
Flower & Hart v. White Industries (Qld) Pty. Ltd. (1999) 87 FCR 134
Hocking v. Western Australian Bank (1909) 9 CLR 738
Idoport Pty. Ltd. v. National Australia Bank Ltd. [2001] NSWSC 222
James Hardie & Co. Pty. Ltd. v. Hall (1998) 43 NSWLR 554
Kang v. Kwan [2001] NSWSC 698
Melbourne Corporation v. Barry (1922) 31 CLR 174
Moran v. Moran [2000] NSWSC 151
Pitts v. Adney (1961) 78 WN(NSW) 886
Potter v. Minahan (1908) 7 CLR 277
Sargood Bros v. Commonwealth (1910) 11 CLR 258
Solomon's Case [1897] AC 220
Southern Equities Corporation Ltd. (In Liq) v. Arthur Anderson & Co. (1997) 70 SASR 166
Spautz v. Gibbs (1990) 21 NSWLR 230
Williams v. Spautz (1992) 174 CLR 509DECISION: Leave to appeal refused with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA40351/02-40358/02
Friday 30 August 2002MASON P
HODGSON JA
SANTOW JA
VAN DER LEE & ORS.V. STATE OF NEW SOUTH WALES & ORS.
HEADNOTE
Facts
The opponents (the State interests) were defendants in eight proceedings relating to the landslide at Thredbo in 1997. They cross-claimed against Lend…
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Details
- Case
- [2002] NSWCA 286
- Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales considered an appeal concerning the admissibility of "without prejudice" communications and the potential for abuse of process. The dispute involved proceedings brought against employees of a deregistered company, with the plaintiffs alleging that the purpose of these proceedings was to extract money from the holding company.
The central legal issues before the court were whether "without prejudice" communications, typically protected from disclosure to prevent prejudice to settlement negotiations, could be admitted as evidence to demonstrate an abuse of process. Furthermore, the court had to determine whether the proceedings against the employees, and by extension the holding company, were brought with reasonable grounds, or if they constituted an abuse of process.
The court reasoned that while "without prejudice" privilege generally protects settlement negotiations, this protection is not absolute and can be overridden where the communications themselves are alleged to be part of an abuse of process. The court found that there were reasonable grounds for bringing proceedings against both the employees and the holding company, and therefore, the proceedings did not amount to an abuse of process. Consequently, leave to appeal was refused with costs.
The central legal issues before the court were whether "without prejudice" communications, typically protected from disclosure to prevent prejudice to settlement negotiations, could be admitted as evidence to demonstrate an abuse of process. Furthermore, the court had to determine whether the proceedings against the employees, and by extension the holding company, were brought with reasonable grounds, or if they constituted an abuse of process.
The court reasoned that while "without prejudice" privilege generally protects settlement negotiations, this protection is not absolute and can be overridden where the communications themselves are alleged to be part of an abuse of process. The court found that there were reasonable grounds for bringing proceedings against both the employees and the holding company, and therefore, the proceedings did not amount to an abuse of process. Consequently, leave to appeal was refused with costs.
Orders
Orders of the court
Leave to appeal refused with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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