Abrook & Ors v Patterson & Ors [1995] FCA 697

Abrook & Ors v Patterson & Ors [1995] FCA 697

Settlement agreements and related documents relevant to mitigation of loss and quantum of damages are discoverable; only those documents actually arising from settlement negotiations (i.e., without prejudice communications under s 131(1) of the Evidence Act) attract privilege. Documents evidencing completed settlements do not attract such privilege, nor is common interest privilege established on the facts. Production to the respondents is ordered, subject to confidentiality arrangements.

Parties
Applicants: Robert & Lorna Abrook & Ors; First to Seventh Respondents: Greg Paterson & Ors; Eighth Respondent: William John East as Administrator of the Family Security Friendly Society; Cross Respondents: Patrick Finan & Ors; Interveners: Bain & Company Limited and Bain & Company Investors Services Limited
Jurisdiction
Australia
Judgment Date
30 August 1995
Procedural Posture
Notice of Motion (discovery and Inspection of Documents) in Existing Proceedings / Interlocutory Decision on Discovery and Privilege; Hearing Has Commenced
Outcome
Order for production of relevant settlement agreements and related documents, save for those to which privilege is established; production subject to confidentiality arrangements; no order for further discovery on the broader request; hearing as to final form of confidentiality orders reserved.
Legal Topics
Discovery, Privilege, Without Prejudice Communications, Common Interest Privilege, Production of Documents
Civil Procedure Evidence Discovery Privilege Without Prejudice Communications Common Interest Privilege Production of Documents

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Parties

Robert & Lorna Abrook & Ors

Applicants

Greg Paterson & Ors

First to Seventh Respondents

William John East as Administrator of the Family Security Friendly Society

Eighth Respondent

Patrick Finan & Ors

Cross Respondents

Bain & Company Limited and Bain & Company Investors Services Limited

Interveners

Procedural Posture

Notice of Motion (discovery and Inspection of Documents) in Existing Proceedings / Interlocutory Decision on Discovery and Privilege; Hearing Has Commenced

Legal Issues

  1. 1 Whether settlement agreements and related documents from overlapping proceedings are discoverable in these proceedings
  2. 2 Whether the documents are protected by privilege (without prejudice, common interest, legal professional) and whether production is necessary

Ratio Decidendi

Settlement agreements and related documents relevant to mitigation of loss and quantum of damages are discoverable; only those documents actually arising from settlement negotiations (i.e., without prejudice communications under s 131(1) of the Evidence Act) attract privilege. Documents evidencing completed settlements do not attract such privilege, nor is common interest privilege established on the facts. Production to the respondents is ordered, subject to confidentiality arrangements.

Court Disposition

Order for production of relevant settlement agreements and related documents, save for those to which privilege is established; production subject to confidentiality arrangements; no order for further discovery on the broader request; hearing as to final form of confidentiality orders reserved.

Orders

  • Applicants to produce for inspection by the respondents (Horwath & Horwath) the complete originals of the documents referred to in part 3 of the first schedule to the applicants' updated list of documents dated 8 August 1995, except those parts privileged under 'without prejudice' privilege or legal professional...