Ingot & Ors v Macquarie & Ors [2004] NSWSC 1091

Ingot & Ors v Macquarie & Ors [2004] NSWSC 1091

The correspondence and documents sought by paragraphs 1 and 3 of the notice to produce related to the mediation and were inadmissible under s 110P of the Supreme Court Act 1970. They had no legitimate forensic purpose justifying production; even if they could conceivably be put to Mr Black, their probative value would be slight and their use would be prejudicial, so the Court would exclude the evidence under s 135 of the Evidence Act 1995. Paragraphs 1 and 3 of the notice to produce were therefore set aside.

Jurisdiction
Australia
Judgment Date
10 November 2004
Procedural Posture
Application to Set Aside Paragraphs of a Notice to Produce in Connection With the Plaintiffs' Application for Leave Further to Amend Their Summons / Interlocutory Evidentiary Issue
Outcome
Paragraphs 1 and 3 of the notice to produce were set aside and the documents produced in response to those paragraphs were returned.
Legal Topics
['notice to Produce' 'without Prejudice Correspondence' 'mediation Confidentiality' 'admissibility of Mediation Documents' 'discretion to Exclude Evidence']
['evidence' 'civil Procedure' 'mediation'] ['notice to Produce' 'without Prejudice Correspondence' 'mediation Confidentiality' 'admissibility of Mediation Documents' 'discretion to Exclude Evidence']

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Procedural Posture

Application to Set Aside Paragraphs of a Notice to Produce in Connection With the Plaintiffs' Application for Leave Further to Amend Their Summons / Interlocutory Evidentiary Issue

Legal Issues

  1. 1 ["Whether the plaintiffs were entitled to production of without prejudice correspondence relating to an attempted mediation to test affidavit evidence of the Macquarie Parties' solicitor" 'Whether the situation was governed by s 131(2)(g) of the Evidence Act 1995 or by s 110P of the Supreme Court Act 1970' 'Whether mediation documents inadmissible under s 110P nonetheless had a legitimate forensic use justifying the notice to produce' 'Whether any evidence should be excluded under s 135 of the Evidence Act 1995']

Ratio Decidendi

The correspondence and documents sought by paragraphs 1 and 3 of the notice to produce related to the mediation and were inadmissible under s 110P of the Supreme Court Act 1970. They had no legitimate forensic purpose justifying production; even if they could conceivably be put to Mr Black, their probative value would be slight and their use would be prejudicial, so the Court would exclude the evidence under s 135 of the Evidence Act 1995. Paragraphs 1 and 3 of the notice to produce were therefore set aside.

Court Disposition

Paragraphs 1 and 3 of the notice to produce were set aside and the documents produced in response to those paragraphs were returned.

Orders

  • ['Paragraphs 1 and 3 of the notice to produce are set aside.' 'The documents produced in answer to paragraphs 1 and 3, marked for identification 4 and 6, are returned.']