Brightstars Holding Co Pty Ltd v Johnston [2012] NSWSC 929

Brightstars Holding Co Pty Ltd v Johnston [2012] NSWSC 929

The letters from the defendants' side dated 7 March 2012 and 12 June 2012 were admissible under s 131(2)(g) because, if excluded, the defendants' evidence about their understanding of the alleged variation or new agreement would be incomplete and likely to mislead the Court. The objected-to affidavit paragraphs and the remaining correspondence did not tend sufficiently to contradict or qualify that evidence, or were equivocal, and were rejected.

Jurisdiction
Australia
Judgment Date
14 August 2012
Procedural Posture
Interlocutory Applications / Evidentiary Ruling on Objections to Affidavit Paragraphs and Annexed Without Prejudice Correspondence
Outcome
Some evidence admitted and some evidence rejected.
Legal Topics
['without Prejudice Communications' 'settlement Negotiations' 'admissibility of Evidence' 'evidence Act 1995 S 131(2)(g)']
['evidence' 'civil Procedure'] ['without Prejudice Communications' 'settlement Negotiations' 'admissibility of Evidence' 'evidence Act 1995 S 131(2)(g)']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Interlocutory Applications / Evidentiary Ruling on Objections to Affidavit Paragraphs and Annexed Without Prejudice Correspondence

Legal Issues

  1. 1 ["Whether paragraphs 26, 39, 40, 41, 42 and 43 of Mr Mattiussi's affidavit and annexed letters were inadmissible as communications made in an attempt to negotiate settlement under s 131(1)(a) of the Evidence Act 1995." 'Whether any of the without prejudice communications were receivable under s 131(2)(g) of the Evidence Act 1995 because evidence already adduced was likely to mislead the Court unless the communications were adduced to contradict or qualify it.']

Ratio Decidendi

The letters from the defendants' side dated 7 March 2012 and 12 June 2012 were admissible under s 131(2)(g) because, if excluded, the defendants' evidence about their understanding of the alleged variation or new agreement would be incomplete and likely to mislead the Court. The objected-to affidavit paragraphs and the remaining correspondence did not tend sufficiently to contradict or qualify that evidence, or were equivocal, and were rejected.

Court Disposition

Some evidence admitted and some evidence rejected.

Orders

  • ["Paragraphs 26, 39, 40, 41, 42 and 43 of Mr Mattiussi's affidavit of 3 August 2012 are rejected." 'Letters from Wood Marshall Williams to Willis & Bowring of 7 March 2012 and 12 June 2012 are admitted.' "Letter from Wood Marshall Williams to Willis & Bowring of 9 March 2012, Willis & Bowring's letter to Wood...