New South Wales Supreme Court CITATION : DTC No 1 Pty Ltd & ors v David Norman Matthew & ors [2009] NSWSC 1280 HEARING DATE(S) : 13 October 2009 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 13 October 2009 DECISION : Evidence admitted CATCHWORDS : EVIDENCE – admissibility and relevancy – where plaintiff seeks to tender "without prejudice" communications – where court satisfied that evidence adduced in proceedings is likely to mislead unless "without prejudice" evidence produced to qualify evidence LEGISLATION CITED : (NSW) Evidence Act 1995, s 131(1), s 131(2)(g) CATEGORY : Procedural and other rulings DTC No 1 Pty Ltd (first plaintiff) Weriton Pty Ltd (second plaintiff) PARTIES : Graham Keith Werry (third plaintiff) Weriton Properties Pty Ltd (fourth plaintiff) David Norman Matthew (first defendant) Joy Elizabeth Matthew (second defendant) FILE NUMBER(S) : SC 2977/09 COUNSEL : Mr A Henskens w Mr N Furlan (plaintiffs) Mr J Robson SC w Ms V Thomas (defendants) SOLICITORS : Leonard Legal (plaintiffs) Morton & Harris RMB Lawyers (defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Tuesday 13 October 2009 2977/09 DTC No 1 Pty Limited (Administrator Appointed) & ors v David Norman Matthew & ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiffs tender, in the course of re-examination of Mr Werry, e-mails of 18 and 21 April 2008 from the plaintiffs' solicitor Morton & Harris to Mr Werry, each of which is marked "Without Prejudice", and relates to an attempt to implement an in principle compromise of a dispute between them as to repayment of the preliminary finance. The defendants object, on the basis of "Without Prejudice" privilege under (NSW) Evidence Act 1995, s 131(1). 2 On 2 May 2008, Mr Werry replied in a letter, which on its face was open and which referred to "continuation of the joint venture agreement" and which was used in cross-examination of Mr Werry to suggest that he was of a view that the plaintiffs would not be well served by pursuing the joint venture and in effect wanted to terminate it. The defendants' solicitors responded in a letter of 5 May 2008, professing surprise that the plaintiff would wish to assert that the Joint Venture Agreement still had some operative effect. Mr Werry responded on 8 May 2008 with a proposal to consider restructuring the joint venture – which was also used in his cross-examination to suggest that he did not wish to proceed with the joint venture, or to that effect. 3 In the meantime, on 7 May, in a letter which emerged only in re-examination, Mr Werry had in fact responded to the assertion in the 5 May letter, asserting that DTC considered the Joint Venture Agreement to be operative. 4 The material tendered and subject to present objection reveals Mr Matthew's solicitors submitting a proposed Deed of Termination of the Joint Venture to Mr Werry. In my view, at least potentially, it reveals a rather radically different view of events than that which might appear or be inferred, were that material not admitted. 5 I am satisfied for the purpose of Evidence Act, s 131(2)(g), that evidence that has been adduced in the proceedings or are inferred from evidence that has been adduced in the proceedings, is likely to mislead the Court unless evidence of the "without prejudice" communication is adduced to qualify that evidence. I admit the material under objection as PX09. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.