Van Der Lee v New South Wales

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.