Owners of Strata Plan 64622 v Australand Corporation Pty Ltd & anor [2009] NSWSC 614

Owners of Strata Plan 64622 v Australand Corporation Pty Ltd & anor [2009] NSWSC 614

The Court exercised its supervisory power over the reference because the issue concerned without prejudice privilege and the risk of tainting the referee. Communications expressly described as open offers were not confidential for s 131 purposes, but the central communications relied on in Mr Newsom's affidavit were without prejudice communications and none of the relied-upon s 131(2) exceptions applied. Because those communications were at the heart of the affidavit, the defendants were not entitled to adduce the affidavit in the reference.

Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Procedural Ruling in Technology and Construction List Proceedings Referred to a Referee for Inquiry and Report on Liability and Quantum / Plaintiff's Notice of Motion Seeking Exclusion of the Affidavit of Michael Newsom From the Reference
Outcome
Plaintiff's motion substantially allowed; affidavit excluded from the reference and defendants ordered to pay the plaintiff's costs of the motion.
Legal Topics
['reference to Referee' 'without Prejudice Privilege' 'admissibility of Settlement Communications' 'evidence Act 1995 (nsw) S 131' 'failure to Mitigate Damages' 'rectification Works']
['civil Procedure' 'evidence' 'construction Law'] ['reference to Referee' 'without Prejudice Privilege' 'admissibility of Settlement Communications' 'evidence Act 1995 (nsw) S 131' 'failure to Mitigate Damages' 'rectification Works']

Case Brief

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Procedural Posture

Procedural Ruling in Technology and Construction List Proceedings Referred to a Referee for Inquiry and Report on Liability and Quantum / Plaintiff's Notice of Motion Seeking Exclusion of the Affidavit of Michael Newsom From the Reference

Legal Issues

  1. 1 ['Whether the Court should determine the admissibility issue or leave it to the referee in the reference.' 'Whether the affidavit of Michael Newsom should be excluded because it relied on without prejudice communications.' 'Whether exceptions in s 131(2) of the Evidence Act 1995 (NSW) permitted evidence of the without prejudice communications to be adduced.' 'Whether the overtly open offers were excluded from without prejudice protection by s 131(2)(d).']

Ratio Decidendi

The Court exercised its supervisory power over the reference because the issue concerned without prejudice privilege and the risk of tainting the referee. Communications expressly described as open offers were not confidential for s 131 purposes, but the central communications relied on in Mr Newsom's affidavit were without prejudice communications and none of the relied-upon s 131(2) exceptions applied. Because those communications were at the heart of the affidavit, the defendants were not entitled to adduce the affidavit in the reference.

Court Disposition

Plaintiff's motion substantially allowed; affidavit excluded from the reference and defendants ordered to pay the plaintiff's costs of the motion.

Orders

  • ['Pursuant to UCPR r 20.20(1), the defendants are not entitled to adduce in the reference the affidavit of Michael Newsom sworn 1 May 2009.' 'The direction does not preclude the defendants from tendering separately evidence of a matter covered by that affidavit which is not inadmissible, or the open offers, if...