Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1621

Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1621

Questions seeking a witness's state of mind or knowledge are not excluded merely because the state of mind or knowledge was derived from communications or documents connected with mediation or settlement negotiations; the privilege and statutory exclusion prevent use of the communications or documents themselves, not use of knowledge gained from them. However, a question seeking evidence of a document subject to a claim for privilege cannot proceed unless the privilege claim is overruled.

Jurisdiction
Australia
Judgment Date
21 November 2012
Procedural Posture
Procedural and Other Rulings / Rulings on Admissibility
Outcome
Rulings on admissibility: the questions in Rulings 1 and 2 were allowed; in Ruling 3, the question could not be asked without overruling the claim for privilege.
Legal Topics
['admissibility' 'mediation Privilege' 'without Prejudice Communications' 'settlement Negotiations' 'witness Opinion or State of Mind']
['evidence' 'civil Procedure'] ['admissibility' 'mediation Privilege' 'without Prejudice Communications' 'settlement Negotiations' 'witness Opinion or State of Mind']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Rulings on Admissibility

Legal Issues

  1. 1 ["Whether a question seeking a witness's state of mind or opinion on a date in 2005 was inadmissible because its basis was sourced in a communication made for the purposes of mediation." 'Whether information or knowledge gained from a privileged communication in mediation or settlement negotiations may be used in the subsequent conduct of proceedings, even though the communication itself cannot be used.' 'Whether a question seeking evidence of a document subject to a claim for privilege could be asked without overruling the privilege claim.']

Ratio Decidendi

Questions seeking a witness's state of mind or knowledge are not excluded merely because the state of mind or knowledge was derived from communications or documents connected with mediation or settlement negotiations; the privilege and statutory exclusion prevent use of the communications or documents themselves, not use of knowledge gained from them. However, a question seeking evidence of a document subject to a claim for privilege cannot proceed unless the privilege claim is overruled.

Court Disposition

Rulings on admissibility: the questions in Rulings 1 and 2 were allowed; in Ruling 3, the question could not be asked without overruling the claim for privilege.

Orders

  • ['Ruling 1: The question was allowed.' 'Ruling 2: The question was allowed.' 'Ruling 3: The question sought evidence of a document subject to a claim for privilege and could not be asked without overruling the claim for privilege.']