Hera Resources Pty Ltd v Gekko Systems Pty Ltd [2019] NSWSC 37

Hera Resources Pty Ltd v Gekko Systems Pty Ltd [2019] NSWSC 37

The OMC Report was not prepared for the dominant purpose of obtaining legal advice or legal proceedings, and privilege was waived by providing it to Hera. The 26 October 2016 letter and the OMC Report were not sufficiently connected to an attempt to negotiate a settlement, and thus do not attract privilege under s 131. Both documents are admissible at trial.

Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Motion / Advance Ruling on Admissibility at Trial
Outcome
Ruling for plaintiff; both documents admissible; costs awarded
Legal Topics
['client Legal Privilege' 'without Prejudice Privilege' 'admissibility of Documents' 'settlement Negotiations']
['evidence' 'equity' 'technology and Construction'] ['client Legal Privilege' 'without Prejudice Privilege' 'admissibility of Documents' 'settlement Negotiations']

Case Brief

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Procedural Posture

Motion / Advance Ruling on Admissibility at Trial

Legal Issues

  1. 1 ['Whether the 26 October 2016 letter and the OMC Report are privileged under client legal privilege or without prejudice privilege and thereby inadmissible']

Ratio Decidendi

The OMC Report was not prepared for the dominant purpose of obtaining legal advice or legal proceedings, and privilege was waived by providing it to Hera. The 26 October 2016 letter and the OMC Report were not sufficiently connected to an attempt to negotiate a settlement, and thus do not attract privilege under s 131. Both documents are admissible at trial.

Court Disposition

Ruling for plaintiff; both documents admissible; costs awarded

Orders

  • ['Pursuant to s 192A of the Evidence Act 1995 (NSW), the Court rules that the admissibility in evidence at the trial of these proceedings of the letter from the defendant to the plaintiff dated 26 October 2016 and the report by Brian Putland of Orway Mineral Consultants (WA) Pty Ltd dated 25 October 2016 is not...