Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756

New South Wales Supreme Court

Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 26 July 2005

JUDGMENT DATE : 26 July 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : "Without prejudice" material rejected as not falling within the exception in s 131(2)(g) of the Evidence Act 1995.

CATCHWORDS : EVIDENCE [83] - Facts excluded from proof - On grounds of privilege - Other cases - Settlement negotiations - Where Court likely to be misled if evidence not adduced.

LEGISLATION CITED : Evidence Act 1995 ss 131(1), 131(2)(g)

Brown v Commissioner of Taxation (2001) 187 ALR 714 CASES CITED : Pitts v Adney (1961) 78 WN (NSW) 886

Bloss Holdings Pty Limited (P) PARTIES : Brackley Industries Pty Limited (D1) Lamajon Pty Limited (D2)

FILE NUMBER(S) : SC 3558/03

G J Drake (P) COUNSEL : M A Ashhurst (Ds)

Mark Phillip Symonds (P) SOLICITORS : Kemp Strang (Ds)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 26 JULY 2005

3558/03 BLOSS HOLDINGS PTY LIMITED v BRACKLEY INDUSTRIES PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: I have deferred ruling on a number of tenders of evidence that essentially arise out of or revolve around the same matter. That matter is encapsulated in a handwritten document that is the last annexure to the plaintiff's first affidavit. It is apparent from the terms of the document that it was made during a meeting between Mrs Vermunt and Mr Gary Abrams which took place on 3 February 2003. The document is said to have been dictated by Gary Abrams to Maria Pates (Vermunt). It is apparent from something written next to her signature at the foot of the document that the document is indeed in her handwriting. It would seem that the offer which the document constitutes had to be accepted by Maria Pates by 9am on the following day, 4 February 2003 (see par 14). What is written against Mrs Vermunt's signature at the foot of the document is "understand and under consideration". All these features, as I say, confirm that the document constitutes an offer by Mr Abrams to Mrs Vermunt to settle the differences between them and between their respective companies relating to her employment and relating to contractual relations between them generally. 2 It is put to me that, although the contents of this document clearly attract the privilege under s 131(1) of the Evidence Act 1995, they are admissible by virtue of the provisions of s 131(2)(g). The exception provided by s 131(2)(g) operates if: "Evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the Court unless evidence of the communication or document is adduced to contradict or to qualify that evidence ..." 3 The evidence which Mr Drake, of counsel for the plaintiff, tells me is the evidence, or founds the inference, which, in his submission, it is necessary to contradict or qualify is as follows: (1) That Mr Abrams was so unhappy with Mrs Vermunt by November 2001 that he resolved to place their relationship on an employer/employee footing only, to end her share entitlement and, from January 2002 onwards, to deal with her as an employee only. (2) That by February 2003 Mr Abrams was so unhappy with Mrs Vermunt as an employee that he was in the process of terminating her employment. 4 Mr Ashhurst, of counsel for the defendants, has drawn to my attention as important in the circumstances what was said about s 131(2)(g) in the Federal Court by Emmett J in Brown v Commissioner of Taxation (2001) 187 ALR 714. His Honour said at [184] and [185]: "[184] I consider that s 131(2)(g) is designed to deal with the sort of circumstances that arose in Pitts v Adney (1961) 78 WN (NSW) 886. Evidence of a 'without prejudice' communication was admitted in that case in order to prove the fact of and the nature of the communication. It was not tendered in order to contradict evidence as to the matters in issue, or as an admission.