Hoefler, P v Tomlinson, P J & Ors [1995] FCA 1105

CATCHWORDS APPEAL - want of prosecution - no step taken beyond filing notice of appeal - appeal dismissed EVIDENCE - 'without prejudice' communications - privilege - letter marked 'without prejudice' containing settlement offer - relevance in proceedings where delay is an issue - what use could properly be made of the communication. Federal Court Rules O 52 r 38 Evidence Act 1995 (Cth) ss 131, 133 Van Reesema v Giameos (1979) 27 ALR 525 Simaan General Contracting Co v Pilkington Glass Ltd [1987] 1 All ER 345 Walker v Wilsher (1889) 23 QBD 335 PETER HOEFLER v PETER JOHN TOMLINSON & ORS No. QG 139 of 1995 SPENDER, SACKVILLE & KIEFEL JJ BRISBANE 9 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY ) No. QG 139 of 1995 GENERAL DIVISION ) BETWEEN : PETER HOEFLER Appellant AND : PETER JOHN TOMLINSON First Respondent AND : JEAN TOMLINSON Second Respondent AND : ENZO SGAMBELLONE Third Respondent

CORAM: SPENDER, SACKVILLE & KIEFEL JJ PLACE: BRISBANE DATE: 9 NOVEMBER 1995 MINUTES OF ORDER THE COURT ORDERS THAT: (i) the appeal No QG139 of 1995 be dismissed; (ii) the appellant pay the respondents' costs of the appeal, including any reserved costs, to be taxed if not agreed; and (iii) the appellant pay the respondents' costs of this motion, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY ) No. QG 139 of 1995 GENERAL DIVISION ) BETWEEN : PETER HOEFLER Appellant AND : PETER JOHN TOMLINSON First Respondent AND : JEAN TOMLINSON Second Respondent AND : ENZO SGAMBELLONE Third Respondent CORAM: SPENDER, SACKVILLE & KIEFEL JJ PLACE: BRISBANE DATE: 9 NOVEMBER 1995 REASONS FOR JUDGMENT SPENDER J: By a notice of motion filed on 10 October 1995, the respondents to an appeal by Peter Hoefler, namely, Peter John Tomlinson and Jean Tomlinson, seek that the appeal be dismissed for want of prosecution pursuant to O 52 r 38(1) of the Federal Court Rules. That rule provides that: " Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may - (a) order that the appeal shall be dismissed for want of prosecution... " Sub-rule 2 provides that: " A respondent may move on notice for an order under sub-rule (1), and the Court, after notice to the appellant has been given by the Registrar, may make orders in accordance with sub-rule (1) of its own motion. " In this particular case, apart from the filing of a notice of appeal, no further step has been taken by Mr Hoefler in the prosecution of his appeal. The chronology of events indicates that there has been no attempt to appear at the appointment to settle the appeal papers. Nothing has been done to prosecute the appeal further. In Van Reesema v Giameos (1979) 27 ALR 525, the court emphasised that the power to dismiss appeals is one that is not to be lightly exercised. However, each case, of course, depends on its own facts. In that case the appeal was dismissed because the appellant had breached orders of the court, the appeal being from a sequestration order which affected the rights of creditors, and the court was not satisfied that there was a reasonably arguable case on appeal. This is a case where there has been simply no effort to prosecute the appeal, and one can infer that there is no intention on Mr Hoefler's part to prosecute his appeal, and in those circumstances it seems to me that the appeal should be dismissed for want of prosecution pursuant to O 52 r 38. There is, however, one matter to which I ought to refer. In an affidavit filed on 8 November 1995, the solicitor for the moving respondents on the motion to dismiss for want of prosecution exhibited a 'without prejudice' letter dated 6 November from a firm of solicitors, Joseph Di Mauro & Associates. The letter was marked "without prejudice", and its contents clearly enough contained a proposal to settle the appeal. I accept that it was necessary for the respondents, on their motion, to establish that Mr Hoefler was aware that this motion would be heard this morning. It would have been proper to make reference to that letter for that purpose. However, it is not proper to make reference to the contents of the proposal to settle the matter and the letter should not have been exhibited. The legal position is that evidence of the letter is not to be adduced. Section 131(1) of the Commonwealth Evidence Act 1995 provides: " Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. " Section 131(2) provides for exceptions to that general rule. A close reading of those many exceptions indicates that none of them covers the situation in the present case. The rationale of the rule excluding evidence of settlement negotiations is the public policy of encouraging out-of-court settlements and the principle promoting the individual's right to enter into such negotiations openly and without interference. I acknowledge that the common law admits of a possible exception where delay is an issue, as in proceedings involving alleged want of prosecution or laches. In such proceedings it is clear enough that the fact of without prejudice communication between the parties may be a relevant matter. It may explain delay, for instance. Another reason for the exception may be that in such cases the communication is not genuinely intended to be an attempt at settlement and therefore does not come within the general rule. Or it may be that the reason for its disclosure, namely to assess whether there has been unreasonable delay, does not offend the policy behind the general rule. Phipson on Evidence, in the 14th Edition, at Chapter 20, paragraph 65, said: " It is certainly the case that without prejudice communications are admissible for the purpose of showing that they have been made. It is long established that they may be adduced in evidence as explaining delay. Though there is little authority on this topic, in practice without prejudice correspondence is regularly exhibited to affidavits without objection from the Court or counsel on interlocutory applications, for example, to strike out for want of prosecution or for discovery. In some cases this is because the correspondence, though headed without prejudice, is in reality nothing of the sort. In others, however, it genuinely falls within the protection accorded to without prejudice correspondence, but is admissible because the purpose for which it is tendered does not infringe the policy of the rules. " In Simaan General Contracting Co v Pilkington Glass Ltd [1987] 1 All ER 345, Judge John Newey QC at 347, dealing with the question of without prejudice communication, said: " It is public policy to encourage litigants to settle their differences and, since they are most unlikely to negotiate satisfactorily if every word which they utter and every offer which they make can be quoted against them later, the general rule has long been that nothing which is written or said 'without prejudice' can be referred to in Court subsequently without the consent of all parties concerned. To the general rule there are exceptions. In Walker v Wilsher (1889) 23 QBD 335 at 338 Lindley LJ referred to letters written without prejudice being considered in a case in which a question of laches was raised and, at least in my experience, they are referred to freely without protest on applications to strike out for want of prosecution. " In Walker v Wilsher, Lindley LJ said, at 338: " No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer is dealt with - the material matters, that is to say, of the letters - must not be looked at without consent. " In McNicol's Law of Privilege (1992), under the rubric "Fact that letters were written and their dates" at p. 481, the learned author says: " It is sometimes claimed that without prejudice privilege 'casts a veil, not over the date on which the letter was written or over the fact that it was written, but over the whole of the contents of the letter'. In Walker v Wilsher Lindley LJ states that the fact that without prejudice letters have been written and the dates at which they were written may be taken into consideration in cases where the question of laches is raised. The admission of such fact and dates does not, however, affect the inviolability of the contents of the negotiations. Vaver argues that this exception in relation to the fact that letters were written and their dates should extend beyond mere cases of laches to any case where inferences of delay or undue passage of time might otherwise be drawn. A much wider extension was suggested in the case of Simaan General Contracting Co v Pilkington Glass Ltd, ... " In this Court, the issue is governed by s 131(1) of the Evidence Act, which says that the evidence of the communication "is not to be adduced". Section 133 of the Evidence Act provides as follows: " If a question arises under this Part in relation to a document, the Court may order that the document be produced to it and may inspect the document for the purpose of determining the question. " The purpose of exhibiting the letter in this case was to establish that Mr Hoefler was aware of the hearing of this application to strike out his appeal. That could have been done by referring to the fact and the date of the letter and the first sentence of it, and perhaps to the suggestion that the appeal should be adjourned. It was not necessary to exhibit the letter, in particular the contents of the offer, for that purpose. To do so is contrary to the provisions of the Evidence Act. It offends the very important principle of public policy which underpins those provisions. It should not have been done. On the motion to strike out the appeal for want of prosecution, in my opinion the evidence establishes that the Court should make the order which is authorised by O 52 r 38. I would propose that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal, including reserved costs, and the costs of this motion, to be taxed if not agreed. SACKVILLE J: I agree with the orders proposed by Spender J and with his Honour's reasons. KIEFEL J: I also agree and have nothing to add. SPENDER J: The orders of the Court are that the appeal QG139 of 1995 be dismissed, the appellant pay the respondents' costs of the appeal, including any reserved costs, to be taxed if not agreed, and the appellant pay the respondents' costs of this motion, to be taxed if not agreed. I certify that this and the preceding 6 (six) pages are a true copy of the reasons for judgment herein of the Court. Associate Date: 9 November 1995