JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: X (a pseudonym) -v- Y (a pseudonym) [2022] WADC 85
CORAM: SWEENEY DCJ
HEARD: 28 FEBRUARY 2022
DELIVERED : 8 SEPTEMBER 2022
FILE NO/S: [Suppressed]
BETWEEN: X (a pseudonym)
Plaintiff
AND
Y (a pseudonym)
First Defendant
Z (a pseudonym)
Second Defendant
Catchwords:
Section 71 of the Supreme Court Act 1935 (WA) - Inadmissibility of offer made during mediation - Confidentiality of offer made in mediation - Without prejudice privilege - Waiver - Consent
Legislation:
Nil
Result:
Preliminary issue determined in favour of defendants.
Evidence ruled inadmissible and statement of claim and schedule of damages to be substituted.
Representation:
Counsel:
| Plaintiff | : | In Person |
| First Defendant | : | Mr G D Cobby SC |
| Second Defendant | : | Mr G D Cobby SC |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | MDS Legal |
| Second Defendant | : | MDS Legal |
Case(s) referred to in decision(s):
Avonwick Holdings Ltd v Webinvest Ltd [2014] EWCA Civ 1436
B v Auckland District Law Society [2003] 2 AC 736
Biala Pty Ltd v Mallina Holdings Ltd [1990] WAR 174
Bourns Inc v Raychem Corp [1999] 3 All ER 154
Briggs v Clay [2019] EWHC 102
C v M [2011] WASC 175
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290
Cutts v Head [1984] Ch 290
Eurasian Natural Resources Corporation Ltd v Dechert LLP [2016] EWCA Civ 375; [2016] 1 WLR 5027
Federal Commissioner of Taxation v Consolidated Media Holdings Pty Ltd [2012] HCA 55; (2012) 250 CLR 503
Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; (2016) 247 FCR 40
Hyde v Wrench (1840) 49 ER 132
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Masters v Cameron (1954) 91 CLR 353
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Muller v Linsley & Mortimer [1994] EWCA Civ 39; [1996] PNLR 74
Naso v Danehill Nominees Pty Ltd [2006] WASC 265
Ofulue v Bossert [2009] UKHL 16; [2009] 1 AC 990
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
Pinto v Kinkela [2003] WASC 126
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
State of Western Australia v Southern Equities Corporation Ltd (in liq) (1996) ALR 597
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Unilever PLC v The Procter & Gamble Co [2000] 1 WLR 2436
Western Areas Exploration Pty Ltd v Streeter [No 2] [2009] WASCA 15
Yokogawa Aust Pty Ltd v Alstom Power Ltd [2009] SASC 377
YXW Pty Ltd v Sushi Sushi Franchising Pty Ltd [2016] VSC 538; (2016) 52 VR 182
SWEENEY DCJ:
Introduction
Section 71 of the Supreme Court Act 1935 (WA) provides that evidence of anything said or done, any communication and any admission made in the course of, or for the purposes of, an attempt at settlement…
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- AGLC
- X (a pseudonym) v Y (a pseudonym) [2022] WADC 85
- Case
- [2022] WADC 85
- Decision Date
CaseChat Overview and Summary
The court approached the interpretation of Section 71 by adhering to the objective intent of Parliament, rather than subjective views of individual members. It considered the ordinary meaning of the statutory words and relevant extrinsic materials, such as the Second Reading Speech, while disregarding a statutory declaration by a former member of Parliament. The court emphasised that statutory law takes precedence over common law, and that Parliament is not bound to restate the existing common law when enacting legislation. It was determined that Section 71(1) has a broad interpretation, extending beyond the mediation conference to include conduct and statements made with the purpose of attempting to settle a proceeding by mediation.
The court concluded that the statutory provisions were not limited to mere restatements of the common law but could also alter or abolish certain common law principles. The evidence in question, which was an offer made during mediation, was deemed inadmissible under Section 71 due to its broad scope. The confidentiality of such offers, protected by the without prejudice privilege, was upheld, and there was no indication of a waiver of these privileges. Consent, in this context, did not affect the admissibility of the evidence.
The final orders of the court upheld the inadmissibility of the evidence in question, reinforcing the confidentiality of offers made during mediation and the protections afforded by the without prejudice privilege. This decision underscores the importance of interpreting statutory provisions objectively and recognising the precedence of statutory law over common law.
Orders
Orders of the court
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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
Significantly, however, the court does not cross the boundary between construction of a statute and what might have the appearance of judicial legislation: Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 [9] (French CJ & Bell J). The process of interpreting a statute, like the process of interpreting a contract, is an objective exercise. The court has regard to the words of the statute and extrinsic materials for the purpose of determining the objective intent of Parliament. It is not a subjective exercise wherein the court constructs a straw poll of any member of Parliament who had any involvement in the drafting of the bill, or progress of the matter through Parliament, for their personal views on what they intended by the legislation. Subjective views on the interpretation of the legislation may differ and it may be that the objective intent of Parliament, as revealed by the statute, differs from the subjective understanding of individuals. I mention this because, amongst the materials put before the court by the plaintiff, was a statutory declaration sworn by a former member of Parliament who supported the introduction of s 71 (and associated sections) in 2000. The statutory declaration does not purport to express a view as to the interpretation to be placed upon s 71 in any event, and any such view would have been irrelevant, but the statutory declaration does (a) quote what the member had said at the time as reported in Hansard, and (b) indicates what had not been discussed at the time. The statutory declaration is objected to by the plaintiff's former lawyers. It really adds nothing to the Second Reading Speech in any event and I have not placed weight upon it. Finally, in light of certain propositions put in the plaintiff's written submissions before me, it is important to state a basic principle, namely that, in the case of conflict between the two, statutory law carries precedence over the common law. The common law reflects decisions of the judiciary over the centuries, following the principles of precedent. Parliament, in enacting statutory law within the scope of its legislative powers, may restate and confirm the common law, but it may also alter or even abolish a principle of common law. Without attempting any academic analysis of what limitations there might be on Parliament's ability to sweep away what might be regarded as certain fundamental rights, as a basic principle, Parliament is not bound, in enacting legislation, to merely restate the existing common law, and it is an error of approach to assume that any statutory provision must amount to a mere restatement of the common law. On a literal interpretation of the wording of the statute, considering the ordinary meaning of the words employed, s 71(1) is broad and covers anything said or done, any communication or admission, not just in the course of an attempt to settle a proceeding by mediation but, also, for the purposes of an attempt to settle a proceeding by mediation. Its ambit, in terms of rendering evidence inadmissible, therefore, extends to some extent outside the mediation conference to conduct and statements made with that purpose. That concept is not new, having been acknowledged in Field v Commissioner for Railways for New South Wales, and other decisions.