Hera Resources Pty Ltd v Gekko Systems Pty Ltd [2019] NSWSC 37

Supreme Court New South Wales

Medium Neutral Citation: Hera Resources Pty Ltd v Gekko Systems Pty Ltd [2019] NSWSC 37 Hearing dates: 1 February 2019 Decision date: 06 February 2019 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Pursuant to s 192A of the Evidence Act 1995 (NSW) (the Act) the Court rules that the admissibility in evidence at the trial of these proceedings of the letter from the defendant to the plaintiff dated 26 October 2016 and the report by Brian Putland of Orway Mineral Consultants (WA) Pty Ltd dated 25 October 2016 is not prevented by any of ss 118, 119 and 131 of the Act;

(2) The defendant pay the plaintiff's costs of the motion filed on 12 October 2018. Catchwords: EVIDENCE - Privileges - client legal privilege – without prejudice privilege – whether communications made in connection with attempt to negotiate a settlement Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Galafassi v Kelly [2014] NSWCA 190 Gladio Pty Ltd v Buckworth [2015] NSWSC 922 Category: Procedural and other rulings Parties: Hera Resources Pty Ltd (ACN 138 992 999) (Plaintiff) Gekko Systems Pty Ltd (ACN 064 618 293) (Defendant) Representation: Counsel: N Kidd SC with J Dooley (Plaintiff) R Dick SC with D McAndrew SC (Defendant)

Solicitors: Allens (Plaintiff) Colin Biggers & Paisley (Defendant) File Number(s): 2016/369849 Publication restriction: None

Judgment

Introduction 1. By a notice of motion filed on 12 October 2018, the plaintiff, Hera Resources Pty Ltd (Hera), seeks rulings pursuant to s 192A of the Evidence Act 1995 (NSW) (the Act) in relation to the admissibility of two documents at the trial of this matter. One document is a letter dated 26 October 2016 from the defendant, Gekko Systems Pty Ltd (Gekko) to Hera (the 26 October Letter). The other is a report dated 25 October 2016 prepared by Mr Brian Putland of Orway Mineral Consultant (WA) Pty Ltd for Gekko (the OMC Report) that was provided to Hera with the 26 October Letter. 2. It is common ground that it would be appropriate for the Court to make advance rulings on the admissibility of the two documents. Gekko contends that neither document is admissible. In the case of the 26 October Letter, it contends that the communication is privileged from production under s 131 of the Act (relating to without prejudice privilege). In the case of the OMC Report, it contends the report is privileged under s 131 or alternatively under ss 118 or 119 (relating to client legal privilege).