Supreme Court New South Wales Medium Neutral Citation: Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1621 Hearing dates: 21 November 2012 Decision date: 21 November 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Rulings on admissibility Catchwords: EVIDENCE - admissibility of witness opinion or state of mind - where opinion relates to attempts to negotiate settlement EVIDENCE - whether information learnt in conduct of negotiations is admissible - where source of information based on privileged communications Legislation Cited: (NSW) Civil Procedure Act 2005, s 30 (NSW) Evidence Act 1995, s 131 Cases Cited: Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 948 Field v Commissioner for Railways for New South Wales [1957] 99 CLR 285 Category: Procedural and other rulings Parties: Azmin Firoz Daya - Plaintiff CX Reinsurance Company Ltd (formerly CNA Reinsurance Ltd) - First Defendant GE Frankona Reinsurance Ltd (formerly Eagle Star Reinsurance Company Ltd) - Second Defendant Aviva Plc (formerly General Accident Fire & Life Assurance Corp plc) - Third Defendant Certain Underwriters at Lloyds (Contract No ENCDOPR98) - Fourth Defendant Royal & Sun Alliance plc - Fifth Defendant Certain Underwriters at Lloyds (Contract No ENCDOX598) - Sixth Defendant International Insurance Company of Hannover Ltd - Seventh Defendant Representation: Dr Bell SC & Mr Williams – Plaintiff Mr Sexton SC, Mr Muston & Ms Callan – Defendants Sparke Helmore – Plaintiff HWL Ebsworth – Defendants File Number(s): 2004/ 175282 Judgment (ex tempore) Ruling 1 1The witness has been asked a question as to her state of mind on a date in 2005. For present purposes, I assume that the basis for the question is sourced in a communication made between the parties in the course of making arrangements for a mediation between them, expressly on the basis that it was for the purposes of the mediation. 2(NSW) Civil Procedure Act 2005, s 30, defines a mediation session as including any steps taken in the course of making arrangements for the session, or in the course of the follow-up of a session. By subsection (4), evidence of anything said, or of any admission made, in a mediation session is not admissible in any proceedings before any court, and a document prepared for the purposes of, or in the course of, or as a result of a mediation session, or any copy thereof, is not admissible in evidence in any proceedings before any court or other body. 3(NSW) Evidence Act 1995, s 131, provides that evidence is not to be adduced of a communication made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute, or a document prepared in connection with an attempt to negotiate a settlement of a dispute. 4The present question does not seek to elicit evidence of a communication, nor a document, even though it might be founded on such a document, nor does it seek to elicit evidence of anything said or any admission made in a mediation session, nor of a document prepared for the purpose of, or in the course of, or as a result of, a mediation session. 5The distinction between a witness's opinion or state of mind on the one hand, and communications or documents which record it on the other, is well recognised in the law of evidence. It is often said that no privilege attaches to an opinion, though it may to documents that communicate that opinion. Thus, while an expert's report may be privileged, the expert's opinion, if called, is not. In my view, the same applies in the present circumstances. The question does not seek to elicit evidence that is excluded by Civil Procedure Act, s 30, nor evidence the adducing of which is prohibited by Evidence Act, s 131. 6I allow the question. Ruling 2 7Although it may be that, in the events that preceded it, the letter of 20 September 2005, VD 104, might be susceptible of a different construction, I proceed on the basis that it was intended to, and in effect did communicate, an intention that the statement in question be without prejudice for the purposes of the mediation only. In my view, the effect of such a caveat is that the statement, that is the document, cannot be used, both pursuant to Evidence Act, s 131, and pursuant to the Civil Procedure Act, because of the context in which it was delivered. 8But there is a distinction between the statement itself and information or knowledge gained from it. It is unrealistic to expect that lawyers acting for parties in a mediation or settlement negotiations exclude from their minds, or could exclude from their minds, for the purpose of the conduct of the proceedings generally, what they learn in the course of those negotiations. What transpires in those negotiations is privileged and cannot be revealed, at least without consent, but that is a different concept from saying that knowledge gained as a result of them cannot be used. Indeed, mediations are not infrequently embarked on by some parties for the purpose, inter alia, of learning more about their opponent's case, even though the communications that provide the information cannot later be used. This is consistent with the position at common law, that evidence of what a doctor observes during a medical examination is not privileged, even though the medical examination itself was undertaken in connection with an attempt to negotiate a settlement of the dispute between the plaintiff and the defendant [Field v Commissioner for Railways for New South Wales [1957] 99 CLR 285, 291; and, under the Evidence Act, Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 948, in which Justice Beaumont held that a statement by a party to the effect that, because it was insolvent, it could not even consider settlement, was not privileged, because it was not an admission but an objective fact ascertained during the course of negotiations]. 9It seems to me that, although the source of the knowledge that underlies the present question was apparently a privileged communication, that does not preclude lawyers from using that knowledge in the subsequent conduct of the proceedings, even though it precludes them from using the communication in question. 10In my judgment, the question should be allowed. Ruling 3 11In my view, the question seeks to obtain evidence of a document, albeit not at this stage the contents of a document - although it may be of a signature on it, which would be part of the contents of the document - which is subject to a claim for privilege. Without overruling the claim for privilege, that cannot be done. ********** 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. Decision last updated: 20 May 2013