Gazcorp Pty Limited v Woolworths Group Limited [2020] NSWSC 1836

Gazcorp Pty Limited v Woolworths Group Limited [2020] NSWSC 1836

Except for sub-paragraph 28(d) of Mr Kemmler's affidavit, the impugned material was not inadmissible. The internal Woolworths documents were not created in relation to the proposed new Agreement for Lease within the meaning of the Standstill Agreement merely because they referred to proposed lease terms, and they were not communications between persons in dispute or documents prepared in connection with an attempt to negotiate settlement within s 131 of the Evidence Act 1995 (NSW). Sub-paragraph 28(d), which recorded something apparently said in discussions between the parties, was caught by cl 1(a) of the Standstill Agreement and was ruled inadmissible.

Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Notice of Motion for Advance Ruling on Admissibility of Evidence Under S 192 a of the Evidence Act 1995 (nsw) / Interlocutory Application Before Final Hearing
Outcome
Plaintiff's notice of motion filed on 20 November 2020 dismissed except that sub-paragraph 28(d) of Mr Kemmler's affidavit was ruled inadmissible; plaintiff ordered to pay defendant's costs of the motion.
Legal Topics
['advance Ruling on Admissibility' 'without Prejudice Privilege' 'standstill Agreement' 'evidence Act 1995 (nsw) S 131' 'evidence Act 1995 (nsw) S 192 A' 'internal Documents' 'misleading Impression Exception']
['civil Procedure' 'evidence'] ['advance Ruling on Admissibility' 'without Prejudice Privilege' 'standstill Agreement' 'evidence Act 1995 (nsw) S 131' 'evidence Act 1995 (nsw) S 192 A' 'internal Documents' 'misleading Impression Exception']

Case Brief

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Procedural Posture

Notice of Motion for Advance Ruling on Admissibility of Evidence Under S 192 a of the Evidence Act 1995 (nsw) / Interlocutory Application Before Final Hearing

Legal Issues

  1. 1 ['Whether evidence in an affidavit affirmed by Mr Ralph Kemmler and documents annexed to it were inadmissible because they fell within the Standstill Agreement.' 'Whether the impugned material was inadmissible under s 131 of the Evidence Act 1995 (NSW) as without prejudice communications or documents prepared in connection with settlement negotiations.' 'Whether internal Woolworths documents referring to proposed agreement for lease terms were created in relation to the proposed new agreement for lease or negotiations about it.' "Whether absence of the impugned material at trial might create a misleading impression relevant to Gazcorp's abandonment or conventional estoppel claims."]

Ratio Decidendi

Except for sub-paragraph 28(d) of Mr Kemmler's affidavit, the impugned material was not inadmissible. The internal Woolworths documents were not created in relation to the proposed new Agreement for Lease within the meaning of the Standstill Agreement merely because they referred to proposed lease terms, and they were not communications between persons in dispute or documents prepared in connection with an attempt to negotiate settlement within s 131 of the Evidence Act 1995 (NSW). Sub-paragraph 28(d), which recorded something apparently said in discussions between the parties, was caught by cl 1(a) of the Standstill Agreement and was ruled inadmissible.

Court Disposition

Plaintiff's notice of motion filed on 20 November 2020 dismissed except that sub-paragraph 28(d) of Mr Kemmler's affidavit was ruled inadmissible; plaintiff ordered to pay defendant's costs of the motion.

Orders

  • ["Other than sub-paragraph 28(d) of the affidavit affirmed on 29 May 2020 by Mr Ralph Kemmler, which pursuant to s 192A of the Evidence Act 1995 (NSW) I rule inadmissible at the final hearing, the plaintiff's notice of motion filed on 20 November 2020 is dismissed." "Order the plaintiff to pay the defendant's costs...