Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1245

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1245

Although Annexure A was prepared for use in a mediation and fell within s 131(1), there were reasonable grounds at a prima facie level for finding the alleged stock-related fraud, and the Lewis response could be characterised as an active step to conceal or deflect attention from the allegedly false closing stock figure. It was therefore prepared in furtherance of the commission of a fraud within s 131(2)(j) and was admissible, subject to tender of the Lamb challenge document for context.

Jurisdiction
Australia
Judgment Date
20 December 2002
Procedural Posture
Equity Proceeding; Evidentiary Ruling / Ruling on Admissibility of Annexure a to Affidavit of R W Lamb Sworn 11 April 2002
Outcome
Document ruled admissible.
Legal Topics
['admissions and Declarations' 'without Prejudice Communications' 'settlement Negotiations Privilege' 'mediation Documents' 'fraud Exception to Privilege' 'evidence Act 1995 S 131']
['evidence'] ['admissions and Declarations' 'without Prejudice Communications' 'settlement Negotiations Privilege' 'mediation Documents' 'fraud Exception to Privilege' 'evidence Act 1995 S 131']

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Procedural Posture

Equity Proceeding; Evidentiary Ruling / Ruling on Admissibility of Annexure a to Affidavit of R W Lamb Sworn 11 April 2002

Legal Issues

  1. 1 ['Whether Annexure A to the affidavit of R W Lamb was excluded from evidence by s 131(1) of the Evidence Act 1995 as a document prepared in connection with settlement negotiations at a mediation.' 'Whether the document was admissible under the s 131(2)(j) gateway because it was prepared in furtherance of the commission of a fraud.' 'What is meant by "furtherance" in s 131(2)(j).' 'Whether there were reasonable grounds for finding fraud for the purposes of s 131(3).' 'Whether s 131(2)(c) applied because the evidence had been partly disclosed and full disclosure was reasonably necessary.']

Ratio Decidendi

Although Annexure A was prepared for use in a mediation and fell within s 131(1), there were reasonable grounds at a prima facie level for finding the alleged stock-related fraud, and the Lewis response could be characterised as an active step to conceal or deflect attention from the allegedly false closing stock figure. It was therefore prepared in furtherance of the commission of a fraud within s 131(2)(j) and was admissible, subject to tender of the Lamb challenge document for context.

Court Disposition

Document ruled admissible.

Orders

  • ['The last words of paragraph 6 of the affidavit of R W Lamb sworn 11 April 2002 were admitted into evidence.' 'Annexure A to that affidavit, described as the Lewis response, was admitted into evidence.' 'Admission was on condition that the document described as the Lamb challenge be tendered to put the Lewis...