Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 900

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 900

The Group A documents, although comprising or referring to settlement negotiations and many being marked without prejudice, were properly characterised as attempts to negotiate the settlement of an anticipated criminal proceeding and therefore fell outside s 131(1) by reason of s 131(5)(b) of the Evidence Act 1995. In any event, s 131(2)(i) precluded the privilege claim because the plaintiff could not sue in defamation and rely on s 131(1) to prevent production of material directly affecting the defendant's right to defend the claim, including by pleading truth. The plaintiff's public interest argument failed because UCPR 1.9 did not apply to production to the opposing party on discovery...

Jurisdiction
Australia
Judgment Date
09 August 2012
Procedural Posture
Defamation Proceedings; Interlocutory Practice and Procedure Ruling Concerning Discovery and Privilege / Determination of Whether Documents Listed in Discovery and Claimed to Be Subject to Without Prejudice Privilege Must Be Produced for Inspection
Outcome
The defendant's challenge to the plaintiff's claim of without prejudice privilege succeeded and production was ordered.
Legal Topics
['discovery' 'without Prejudice Privilege' 'settlement Negotiations' 'anticipated Criminal Proceedings' 'public Interest Immunity' 'ucpr R 21.5' 'evidence Act 1995 Ss 131 and 131 A']
['practice and Procedure' 'evidence' 'defamation'] ['discovery' 'without Prejudice Privilege' 'settlement Negotiations' 'anticipated Criminal Proceedings' 'public Interest Immunity' 'ucpr R 21.5' 'evidence Act 1995 Ss 131 and 131 A']

Case Brief

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Procedural Posture

Defamation Proceedings; Interlocutory Practice and Procedure Ruling Concerning Discovery and Privilege / Determination of Whether Documents Listed in Discovery and Claimed to Be Subject to Without Prejudice Privilege Must Be Produced for Inspection

Legal Issues

  1. 1 ["Whether Group A documents comprising or referring to negotiations between ASIC and the plaintiff's legal representatives were protected by without prejudice privilege under s 131(1) of the Evidence Act 1995." 'Whether Group B documents supplied by ASIC during negotiations but not themselves comprising or referring to negotiations were protected from production.' 'Whether the negotiations were attempts to negotiate the settlement of an anticipated criminal proceeding within s 131(5)(b) of the Evidence Act 1995.' 'Whether s 131(2)(i) of the Evidence Act 1995 precluded the plaintiff from claiming privilege because the communications or documents affected a right of the defendant.' 'Whether production should be refused on public interest grounds, including under UCPR 1.9 or common law public interest immunity.']

Ratio Decidendi

The Group A documents, although comprising or referring to settlement negotiations and many being marked without prejudice, were properly characterised as attempts to negotiate the settlement of an anticipated criminal proceeding and therefore fell outside s 131(1) by reason of s 131(5)(b) of the Evidence Act 1995. In any event, s 131(2)(i) precluded the privilege claim because the plaintiff could not sue in defamation and rely on s 131(1) to prevent production of material directly affecting the defendant's right to defend the claim, including by pleading truth. The plaintiff's public interest argument failed because UCPR 1.9 did not apply to production to the opposing party on discovery...

Court Disposition

The defendant's challenge to the plaintiff's claim of without prejudice privilege succeeded and production was ordered.

Orders

  • ['The documents in Group A and Group B are to be produced by the plaintiff to the defendant within 21 days.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]