Bar-Mordecai v Attorney-General of NSW (No.3) [2013] NSWSC 1631

Bar-Mordecai v Attorney-General of NSW (No.3) [2013] NSWSC 1631

The letter dated 23 August 2013 remained inadmissible because it was prepared in connection with an attempt to negotiate settlement within s 131(1)(a) of the Evidence Act 1995; Mr Bar-Mordecai's statement in paragraph 5 of his affidavit as to his intent and purpose in writing it did not amount to consent to tender or waiver; and s 131(2)(g) did not apply because the contents of the settlement letter were not matters in issue and would not be likely to mislead the Court on whether leave should be granted under the Vexatious Proceedings Act 2008.

Jurisdiction
Australia
Judgment Date
11 September 2013
Procedural Posture
Application for Leave Pursuant to S 14 of the Vexatious Proceedings Act 2008 to Commence Proceedings in the District Court / Evidentiary Ruling on Tender of Letter Dated 23 August 2013 During Hearing
Outcome
Tender of document rejected
Legal Topics
['without Prejudice Communications' 'settlement Negotiations' 'admissibility of Evidence' 'consent to Disclosure' 'evidence Act 1995 S 131' 'vexatious Proceedings Act 2008 S 14']
['evidence' 'civil Procedure' 'vexatious Proceedings'] ['without Prejudice Communications' 'settlement Negotiations' 'admissibility of Evidence' 'consent to Disclosure' 'evidence Act 1995 S 131' 'vexatious Proceedings Act 2008 S 14']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave Pursuant to S 14 of the Vexatious Proceedings Act 2008 to Commence Proceedings in the District Court / Evidentiary Ruling on Tender of Letter Dated 23 August 2013 During Hearing

Legal Issues

  1. 1 ['Whether the letter dated 23 August 2013 was a communication in connection with an attempt to negotiate a settlement of the dispute within s 131(1)(a) of the Evidence Act 1995.' 'Whether Mr Bar-Mordecai consented to the tender of the letter or waived privilege by reading paragraph 5 of his affidavit sworn 30 August 2013 and by the tender of an initial part of the letter as Exhibit 1.' 'Whether s 131(2)(g) of the Evidence Act 1995 applied because evidence already adduced was likely to mislead the Court unless the letter was admitted to contradict or qualify it.']

Ratio Decidendi

The letter dated 23 August 2013 remained inadmissible because it was prepared in connection with an attempt to negotiate settlement within s 131(1)(a) of the Evidence Act 1995; Mr Bar-Mordecai's statement in paragraph 5 of his affidavit as to his intent and purpose in writing it did not amount to consent to tender or waiver; and s 131(2)(g) did not apply because the contents of the settlement letter were not matters in issue and would not be likely to mislead the Court on whether leave should be granted under the Vexatious Proceedings Act 2008.

Court Disposition

Tender of document rejected

Orders

  • ['The tender of the letter dated 23 August 2013 was rejected.']