Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) (RLD)

Wallis Lake Fisherman's Co-operative Ltd sued ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips over an alleged breach of a retail lease agreement. The dispute came before the Australian Capital Territory Civil and Administrative Tribunal and subsequently on appeal to a panel within the Tribunal. The key issue for the court was whether an offer of compromise made during mediation could be admitted as evidence of the respondent's liability, or whether such an offer was protected by privilege. The court considered the nature of mediation, the purpose of offers made during this process, and the balance between the interests of justice and the confidentiality of the mediation process.

The court held that offers made during mediation were protected by privilege and could not be admitted as evidence of liability. The court found that the privilege extended to all offers made during the mediation process, regardless of whether they were made orally or in writing, and regardless of whether the mediation was formal or informal. The court also found that the purpose of mediation was to facilitate a settlement between the parties, and that this purpose would be undermined if offers made during mediation could be used as evidence in subsequent legal proceedings. The court held that the Tribunal had erred in admitting the offer of compromise as evidence, and that this error was material and led to an unjust outcome.

As a result of the court's decision, the appeal was allowed and the order relating to costs in the Tribunal's decision of 25 October 2010 was set aside. The court substituted a new order that each party was to bear its own costs of all of the proceedings in the Retail Leases Division and of the appeal heard by the Appeal Panel on 12 May 2008. The court made no order as to the costs of this appeal.