Cargill Australia Ltd v Viterra Malt Pty Ltd

2 In support of the substantive application, the defendants have filed an affidavit of Mr Weber, sworn 30 August 2018 ('the Weber affidavit').

3 The plaintiff contends that because of the content of the Weber affidavit, evidence of communications in connection with an attempt to negotiate a settlement of this proceeding (which it is conceded is prima facie privileged under s 131(1) of the Evidence Act 2008 (Vic)) may be adduced because it falls within the exception in s 131(2)(g). On that basis, on this application, the plaintiff applies for a ruling that these without prejudice communications are admissible in the substantive application.

4 In my opinion, the without prejudice communications sought to be adduced do not fall within the s 131(2)(g) exception, and I dismiss the plaintiff's application before me accordingly. I give my reasons below.

5 The trial Judge has summarised the acts underlying this proceeding as follows:

On 4 August 2013, Cargill Australia agreed to purchase a business, comprising certain 'shares and the assets used in connection with' the business, from 1 of the Viterra Parties, or alternatively, all of the Viterra Parties, for the sum of $420 million ('the Purchase Agreement').

The Cargill Parties allege Cargill Australia entered into, and later settled, the Purchase Agreement in reliance upon certain representations, which they contend were, compendiously, misleading. This misleading conduct is alleged to have included a failure to disclose that malt was supplied routinely to customers of the business that did not comply with contractual requirements and specifications, without the customers' knowledge. This conduct is alleged to have been accompanied by the supply of certificates of analysis that misstated the results of analytical testing to suggest that the contractual requirements and specifications had been complied with ('the Viterra Practices'). It is further alleged that the Viterra Practices were recorded and endorsed by certain policies ('the Viterra Policies').

Putting it very broadly, the Cargill Parties make claims under the Competition and Consumer Act 2010 (Cth), contractual claims (including breach of warranty) and claims based on a breach of duty and deceit. The loss claimed is significant.

In their defence and amended counterclaim, the Viterra Parties do not admit the allegations concerning the Viterra Practices and the Viterra Policies or any knowledge of them, and otherwise, broadly speaking, deny the substantive allegations made. Reliance is also placed upon the due diligence carried out before the sale, and various disclaimers, acknowledgements, releases and limitations of liability. Allegations are also made against the Cargill Parties suggesting a want of care. Further, issues concerning proportionate liability are raised. Amongst other things, it is alleged various persons ('the Third Parties') are 'concurrent wrongdoers' for the purposes of the Competition and Consumer Act and the Wrongs Act 1958 (Vic).[1]

6 The background facts to the application before me are as follows:

(a) On 19 July 2018, the trial Judge ordered Cargill to make discovery of documents relating to the possible disposition of the business the subject of the Purchase Agreement ('the Project Colombo documents').

(b) On 7 August 2018, the trial Judge ordered Cargill to produce the Project Colombo documents for inspection by the defendants' external lawyers and an expert valuer, on those persons giving confidentiality undertakings.

(c) On 21 August 2018, the trial Judge refused an application by the defendants for permission for Mr Weber to have access to the Project Colombo documents on the basis that the Project Colombo documents were highly confidential.[2] However, he stated in substance that he would review the ruling if the defendants were able to demonstrate a substantive need for access to the Project Colombo documents.[3]

7 As noted above, the defendants have now sought leave to make a further application to permit Mr Weber to have access to the Project Colombo documents, and propose to rely on the Weber affidavit, which in substance purports to provide evidence in support of the following propositions:

(a) Mr Weber's inability to access the Project Colombo documents is a substantial impediment to the conduct of the trial by the defendants.

(b) The confidentiality of the Project Colombo documents would be adequately protected by an appropriate confidentiality undertaking by Mr Weber.

8 As to the latter issue, the plaintiff contends that the following evidence of Mr Weber is likely to mislead the Court unless evidence of without prejudice communications by Weber is adduced to contradict or qualify that evidence:

(a) ... There is no reason or basis whatsoever to think that I would breach any further confidentiality undertaking which I would execute now. The suggestions made by the Cargill Parties that I would do so, and the statements made on behalf of the Cargill Parties both in affidavits and in this Court, including the possible effects of such unauthorized disclosure, are entirely hypothetical and speculative.[4]

(b) I was admitted as an attorney in the State of New York on 20 April 1998. Although I have an inactive status with the State Bar, because I am not employed by a law firm and am not required to maintain active status, I am subject to the disciplinary authority of the Supreme Court of the State of New York, regardless of where my conduct occurs. I am, and have always been, a person of good standing to be admitted in that jurisdiction. I have no disciplinary history in the State of New York, or otherwise.[5]

(c) Glencore plc is the ultimate parent company of a diverse group of corporate entities in different jurisdictions. Glencore plc owns businesses generally premised on three historical ownership chains: first, its legacy holdings owned by Glencore International AG; second, its holdings acquired from Viterra Inc. (in or about December 2012); and, third, its holdings acquired from Xstrata plc (in or about June 2013).

Glencore has submitted to the jurisdiction of this Court by voluntarily accepting service of the originating process , and actively participating in this proceeding in this jurisdiction. Glencore companies have substantial assets situated within Australia. Now shown to me and marked 'MMW-2' is the Glencore 2018 Corporate Profile Australia.[6]

9 Section 131 of the Evidence Act relevantly provides:

(1) 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; ...

(2) Subsection (1) does not apply if:

...

(g) 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;

10 Because this application has been heard before any evidence has been adduced on the substantive application, reliance was placed on s 192A of the Evidence Act which provides as follows:

Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced;

...

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

11 The relevant without prejudice communications that Cargill seeks to adduce ('the Without Prejudice Communications'), which were allegedly made by Mr Weber in mid-2016 at a without prejudice meeting with respect to the current proceedings, were statements I shall refer to as the 'first category statements' and the 'second category statements'. These statements are set out in the confidential annexure to these reasons.

12 In the application before me, Mr Tran on behalf of Cargill submitted as follows:

(a) The relevant issue on the substantive application was the balancing of Cargill's interest in the confidentiality of the Project Colombo documents on the one hand, and the interests of the defendants in the conduct of the litigation on the other. The issue relevant to the former consideration is whether Mr Weber would honour any confidentiality undertaking to the Court.

(b) The words of s 131 of the Evidence Act were paramount and that, on proper analysis, there was not a 'broad view' and 'narrow view' of their operation; and in any event, in this case, whether a broad or narrow approach was adopted, the same result would follow.

(c) The text of sub-s 131(2)(g) imposed two requirements for the exception to apply:

(i) other evidence must have been adduced which would be likely to mislead the Court unless evidence of the without prejudice communication is adduced ('the first element'); and

(ii) evidence of the without prejudice communication must contradict or qualify the evidence that has been adduced ('the second element').

(d) As to the first element, unless evidence of the Without Prejudice Communications was adduced, the Court would be likely to be misled as to whether Mr Weber would honour any confidentiality undertaking to the Court. This is for the following reasons:

(i) Applying the test in Brown v Commissioner of Taxation[7] (which is considered to adopt the narrow approach), if the Without Prejudice Communications are excluded, the Court would be likely to be misled as to the existence of such communications.

(ii) Applying the test in Mulkearns v Chandos Developments Pty Ltd (No 4)[8] (which is considered to adopt the broad approach), if the Without Prejudice Communications are excluded, the defendants may mislead the Court into thinking their case is one in which Weber has never made statements in the nature of the Without Prejudice Communications.

(e) As to the second element, the Without Prejudice Communications are inconsistent with, or at least qualify, the following evidence in the Weber affidavit:

(i) the evidence adduced in paragraph [11], to the effect that there was no basis for a belief that Mr Weber would not comply with a confidentiality undertaking to the Court;

(ii) the inference sought to be drawn from the evidence adduced in paragraph [35], to the effect that Weber was a lawyer of good standing; and

(iii) the evidence adduced in paragraph [45], relating to the assets of Glencore entities in Australia.

13 Mr Prendergast on behalf of the defendants submitted as follows:

(a) There was divergence in the authorities between the broad test in Mulkearns and the narrow test in Brown.

(b) The preponderance of authorities supports the approach in Brown, but on either approach the Without Prejudice Communications do not fall within the exception in s 131(2)(g). This is for the following reasons:

(i) The substantive application does not put in issue the existence or the contents of the Without Prejudice Communications.

(ii) The Without Prejudice Communications do not contradict or qualify the evidence adduced in paragraphs [11] and [35] of the Weber affidavit - for the following reasons:

(A) Mr Weber's evidence is in support of the proposition that he will comply with a confidentiality undertaking, and his evidence does not relate to his attitude to the issues referred to in the first category statements.

(B) Mr Weber's evidence relates to him and his reliability, whereas the first category statements relate to Glencore's attitudes.

(c) There is no basis to suggest that the defendants have attempted to mislead the Court by adducing a body of non-privileged evidence in an incomplete or misleading manner.

14 This application requires me to consider the legal meaning of s 131 of the Evidence Act and, in particular, s 131(2)(g). The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:

(a) the language of the relevant provision, being the text; and

(b) the legislative purpose of the statute.[9]

The legal meaning is 'the meaning that the legislature is taken to have intended the provision to have'.[10] It may or may not be the same as the literal meaning.[11]

15 Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:

(a) The primacy of the text has been emphasised by the High Court.[12] It has been said that the process of statutory interpretation starts and ends with the text;[13] and, in construing a statutory provision, the court must strive to give meaning to every word of the provision.[14]

(b) To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context.[15] The context means:

(iii) the mischief that the statute was intended to remedy;[16] and

(iv) the history of the legislative scheme.[17]

16 If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.

17 Because the parties have sought an advance ruling under s 192A of the Evidence Act, the requirement under s 131(2)(g) for the other evidence (being the Weber affidavit) to have already been adduced is not applicable.[18]

18 As will become apparent, determining the issues in advance of the substantive application gives rise to some difficulties because of uncertainty surrounding the admissibility of the evidence, which is proposed to be adduced on the substantive application. However, on the substantive application, the defendants will apparently rely upon the Weber affidavit.

Application of the Principles of Statutory Interpretation

19 The moving party has the burden of proving the two elements of s 131(2)(g), being that:

(a) other evidence must have already been adduced which would be likely to mislead the Court unless evidence of the without prejudice communications is adduced; and

(b) evidence of the without prejudice communications contradicts or qualifies the other evidence.[19]

20 For the purpose of interpreting s 131(2)(g), Bromberg J, in Barrett Property Group v Dennis Homes (No 2), [20] noted the importance of identifying the mischief that the statute is intended to remedy. He considered the first element underscores the mischief, which the exception is intended to address, being that 'a party that has adduced evidence [is not allowed] to use the privilege to hide the truth and mislead the Court'.[21] The fact that exclusion of a without prejudice communication may result in a court:

(a) not hearing of prior inconsistent statements;[22] or

(b) having only part of the picture in respect of a relevant issue[23]

is not of itself sufficient to satisfy the test in s 131(2)(g). As Bromberg J observed_:_

[Section] 131(2)(g) is not attracted simply because evidence to which s 131(1) applies, contradicts or qualifies evidence that has already been adduced. I would respectively add that s 131(2)(g) is only attracted where the exclusionary rule in s 131(1) would operate to allow a party which has adduced evidence, to use the exclusionary rule as an instrument for misleading the court. [24]

21 In arriving at this conclusion, Bromberg J noted[25] that Emmett J, in Brown,[26] had considered the exceptions listed in s 131(2) in light of the general law, where:

(a) the exception to the exclusionary principle was concerned with reprehensible behaviour and impropriety; and

(b) in Pitts v Adney,[27] Walsh J emphasised the causal connection between a party's reliance upon the privilege and the court being misled.

22 I hesitate to give undue emphasis to the general law in interpreting the Evidence Act because '[i]t is the language of the statute that now determines the manner ... in which evidence has to be treated',[28 ]and 'reference to pre-existing common law concepts will often be unhelpful'.[29]

23 In my opinion, the same conclusion as might be reached on application of common law concepts, is achieved on application of the principles of statutory interpretation:

(a) Reference to the text of the statute itself confirms the exclusions to statutory without prejudice privilege are substantially based on improper conduct. Except for consent[30] or waiver,[31] or costs issues arising from Calderbank letters,[32] s 131(2) only contemplates that privilege may be lost if there is serious impropriety - such as furtherance of a fraud, an offence, a civil penalty;[33] or a deliberate abuse of power,[34] or the misleading of the court.[35]

(b) More specifically, the significance of the requirement that it 'is likely that the court will be misled' is highlighted by a comparison with s 131(2)(e), which provides that s 131(1) does not apply if:

the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute.

This exception does not include the first element. So, once evidence about the course of settlement negotiations is introduced, the parties are entitled to lead further evidence to complete the full picture. In s 131(2)(g), however, the court must give meaning to the first element as an additional requirement.[36]

(c) It is clear that this additional meaning cannot be supplied by a bare relevance test; or if the evidence merely contradicts or discredits other evidence. By definition, relevant evidence, which contradicts or qualifies other evidence, may affect the assessment by the court of that other evidence. The privilege established by s 131(1) would be rendered substantially inutile if the requirements of s 131(2)(g) were interpreted as satisfied by the privileged communications merely affecting the assessment of the probability of a fact in issue by contradicting or qualifying other evidence. As the subsection states, it is the adducing of evidence likely to mislead the Court, which satisfies the first element of the exception. A party does not mislead a court by simply failing to adduce evidence which does not support a party's case.[37] As Bromberg J said in Barrett Property Group v Dennis Homes:

[The construction that the exclusionary rule prevents s 131(1) from operating as an instrument for misleading the court] serves the policy objectives which s 131 seeks to protect. Nothing could be more calculated to undermine settlement discussions, than the prospect of statements made in the course of those discussions being used to discredit evidence adduced at trial, should settlement negotiations fail.[38]

24 The adducing of evidence is likely to mislead the Court if:

(a) the circumstances are such as to give rise to a reasonable expectation on the part of the Court that, if some other relevant fact existed, it would have been disclosed;[39] or

(b) the adducing of certain evidence by a party impliedly represents that the without prejudice communication does not exist.[40]

25 As Kyrou AJA explained in Forster v Legal Services Board:

In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client's case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court.[41]

Evidence adduced in paragraph [11] of Weber affidavit

26 For convenience I repeat the part of paragraph [11] relied on by Cargill as misleading:

There is no reason or basis whatsoever to think that I would breach any further confidentiality undertaking which I would execute now. The suggestions made by the Cargill Parties that I would do so, and the statements made on behalf of the Cargill Parties both in affidavits and in this Court, including the possible effects of such unauthorized disclosure, are entirely hypothetical and speculative.

27 For the following reasons, in my opinion, the evidence adduced in paragraph [11], or inferences therefrom, is not likely to mislead the Court unless the Without Prejudice Communications are adduced.

28 First, apart from the fact that the evidence in paragraph [11] is bad in form, it rises to no more than a self-serving statement of Mr Weber's belief that there is no reason or basis whatsoever to think that he would breach any confidentiality undertaking, given by him now. The fact that he expresses such a belief or opinion does not imply any representation that he may not have made statements such as the Without Prejudice Communications in the past and, in particular, during the course of settlement negotiations two years previous. Neither does his belief or opinion suggest that no other competing views exist as to his fitness to receive confidential material.

29 In Burragubba v Queensland,[42] the Full Court of the Federal Court considered an allegation of fraud in the following circumstances:

(a) In proceedings before the Tribunal, Adani relied on an Environmental Impact Statement ('EIS') for the Carmichael Coal Mine and Rail Project.

(b) In parallel proceedings in the Land Court of Queensland, Adani had received two reports from a retained expert and a joint report, which drew materially different conclusions to the EIS about the economic benefits that would flow from the project in terms of jobs and economic activity.

(c) Burragubba alleged that Adani, by failing to produce the further expert reports, had impliedly represented to the Tribunal that the EIS was 'not in dispute'; and that this representation was a 'half-truth' and misleading because, although the further reports did not completely contradict the EIS, they qualified it.[43]

30 The Court noted that the forecasts in the EIS were opinions and, even if there was a representation by Adani that the relevant opinions were 'not in dispute', '[i]t cannot mean that Adani was representing that no relevant expert, anywhere in the world, would express a different opinion, or that it had no reason to believe that there may be other contradictory opinions'.[44]

31 Relevantly, the Court found that Adani had not misled the Tribunal by not disclosing the qualifying opinions, stating:

In the end, it was for the appellant to demonstrate that in the circumstances of this case, some substantive or procedural rule required that Adani disclose something more than it would choose to disclose, having regard to its own interests. Whilst we accept that a party may not knowingly mislead the Tribunal, we see no basis for compelling the production of opinion evidence which may arguably have been less favourable to its case than was the EIS.

... In particular, we see no basis, in the absence of any statutory intervention, relevant rule of court or court order, for imposing upon a party to proceedings, in a tribunal or a court, a general duty to disclose unfavourable opinions in its possession. There is no reason to believe that in this case, such disclosure was expected by the Tribunal, or by the other parties, or that any such expectation would have been justified.[45]

(a) the expression of what can only be described as vague and poorly contextualised comments, in the first category statements - on the one hand; and

(b) whether a solicitor would comply with a personal undertaking to a court - on the other;

is tenuous in the extreme, particularly when the evidence indicates that the statements may well have been expressed in 'an argumentative exchange with representatives'.[46]

33 Third, in the first category statements, Mr Weber only purports to express the views of Glencore.

34 Cargill contends that, as the defendants' representative in the litigation, the Court should infer that the attitudes expressed in the Without Prejudice Communications were in fact Mr Weber's. I disagree. On the plain reading of the first category statements, Mr Weber makes no reference to his own attitudes and opinions. The evidence provides no context, in which the bare statements were made, which could justify an inference that he was in fact communicating his own personal attitudes and opinions. Because the burden of proof is on Cargill and the evidence of the Without Prejudice Communications is being led by Cargill, I do not consider there is any warrant for inferring meanings beyond the plain meaning of the Without Prejudice Communications.

35 In my opinion, these circumstances would not give rise to a reasonable expectation on the part of the Court that the Without Prejudice Communications should be disclosed.

36 Further, I do not consider that the Without Prejudice Communications contradict or qualify the evidence adduced in paragraph [11] as required by the second element of s 131(2)(g). Properly understood, Mr Weber's evidence adduced in paragraph [11] is as to his belief. The Without Prejudice Communications do not contradict or qualify his evidence as to his belief. At its highest, the Without Prejudice Communications could be a basis for challenging the reasonableness of the belief. However, although credibility evidence can be used to support a submission that a court should not accept evidence, in itself, credibility evidence neither contradicts nor qualifies the evidence.

Evidence adduced in paragraph [35] of Weber affidavit

37 Cargill submits that the inference to be drawn from the evidence in paragraph [35], to the effect that Weber is a person of good standing as an attorney in the State of New York, and from the affidavit as a whole, is that he is a person who will honour his undertaking to the Court. In my opinion, the inference from the paragraph [35] evidence, and the Weber affidavit in total, is not likely to mislead the Court (unless the without prejudice communications are adduced as evidence) for substantially the same reasons as given with respect to the evidence adduced under paragraph [11].

38 In particular, I do not consider that the evidence relating to his good standing as an attorney impliedly represents that Mr Weber has made no statements such as the Without Prejudice Communications in the past; or that a court would reasonably expect that on adducing the paragraph [35] evidence, Mr Weber would disclose matters in the nature of the Without Prejudice Communications.

39 Neither, for the same reasons as stated in paragraph [36] above, do I consider that the Without Prejudice Communications on a plain reading contradict or qualify the paragraph [35] evidence or inferences to be drawn therefrom.

Evidence adduced in paragraph [47] of Weber affidavit

40 In paragraph [47] of his affidavit, Mr Weber states that 'Glencore companies have substantial assets situated within Australia'.

41 On the evidence before me, I am not satisfied that the second category statements contradict or qualify the evidence adduced in paragraph [47]. On the evidence, there is no basis to conclude, even if the second category statements are correct, that Glencore companies do not have substantial assets in Australia.

42 Further, I am informed that no undertaking by a Glencore company has been sought or offered in support of the proposed personal undertaking by Mr Weber; and the evidence adduced in paragraphs [46] and [47], with respect to Glencore's assets in Australia, does not appear to be presently relevant to any aspect of the substantive application.

43 I dismiss the plaintiff's application with costs.

[1] Cargill Australia Ltd v Viterra Malt Pty Ltd [No 2] [2017] VSC 283 [6]-[9] (Elliott J).

[2] Cargill Australia Ltd v Viterra Malt Pty Ltd [No 13] [2018] VSC 478 [13] (Elliott J).

[6] Ibid [46]-[47]. 'Exhibit MMW-2' is a 14-page pamphlet entitled 'Glencore - 2018 Corporate Profile Australia'.

[7] [2001] FCA 596; (2001) 187 ALR 714, 754 [185] (Emmett J) ('Brown').

[8] [2005] NSWSC 511 (Young CJ in Eq) ('Mulkearns').

[9] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[12] See examples cited in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [56]-[62] and the discussion in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [32]-[48] (Osborn and Kyrou JJA) and Lowe v The Queen [2015] VSCA 327; (2015) 48 VR 351, 357-9 [12]-[18] (Warren CJ).

[13] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The expression was adopted by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) and also by the Court of Appeal in DPP v Walters [2015] VSCA 303; (2015) 49 VR 356, 358 [2] (Maxwell P and Redlich, Tate and Priest JJA).

[14] Project Blue Sky 382 [71] (McHugh, Gummow, Kirby and Hayne JJ).

[15] This approach 'needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction': see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

1. [16] For this purpose, courts may have regard to reports of law reform bodies: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
2. [17] Ibid. Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 306 (Gibbs CJ), 324 and 334 (Aitkin J).

[18] Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232 [44] (Almond J); Apotex v Laboratoires Servier (No 5) [2011] FCA 1282; (2011) 199 FCR 62, 73 [46].

[19] Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701; (2008) 247 ALR 781, 789 [76]-[77] (Jacobson J).

[20] Barrett Property Group v Dennis Homes (No 2) [2011] FCA 276; (2011) 193 FCR 479, 487 [47], 488-9 [55] (Bromberg J);

[21] Ibid 487 [47]; Humphreys v Humphreys [2016] VSC 637 [69] (Ginnane J), where his Honour says: 'section 131(2)(g) applies where application of the prohibition in s 131(1) would allow a party to use the cloak of privilege to hide the truth and mislead the court. For the exception in s 131(2)(g) to apply, the opposing party must be attempting to make some inappropriate use of the prohibition in s 131(1)' (emphasis added).

[22] Barrett Property Group v Dennis Homes (No 2) [2011] FCA 276; (2011) 193 FCR 479, 487 [45], 488-9 [55] (Bromberg J).

[23] Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701; (2008) 247 ALR 781, 790 [83] (Jacobson J).

[24] Barrett Property Group v Dennis Homes (No 2) [2011] FCA 276; (2011) 193 FCR 479, 488-9 [55].

[25] Ibid 487-8 [49]-[50], 488-9 [55].

[27] [1961] NSWR 535, 539.

[28 ] Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297, 302 [10] (Gleeson CJ and Hayne J)

[29] Ibid 324 [88] (McHugh J). Also see Gaudron and Kirby JJ at 312 [46]: 'The [Evidence] Act specifies new rules of evidence in place of those developed by the common law'.

[30] Evidence Act s 131(2)(a), (b) and (f).

[31] Ibid s 131(2)(c), (d), (e) and (i).

[32] Ibid s 131(2)(h).

[33] Ibid s 131(2)(j).

[34] Ibid s 131(2)(k).

[35] Ibid s 131(2)(g).

[36] In Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 [7], Hamilton J calls this 'the special circumstance that there is a risk that the Court would be likely to be misled.'

[37] Barrett Property Group v Dennis Homes (No 2) [2011] FCA 276; (2011) 193 FCR 479, 487 [45] and 488-9 [557] (Bromberg J). See also Burragubba v Queensland (2017) 254 FCR 175, 191 [48]-[49] (Dowsett, McKerracher and Robertson JJ); Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587; 619 [161] (Kyrou AJA, with whom Weinberg and Harper JJA agreed).

[38] Barrett Property Group v Dennis Homes (No 2) [2011] FCA 276; (2011) 193 FCR 479, 487 [56]. Harrison J in Komatsu Marketing Support Australia Pty Ltd v Marsh Pty Ltd [2012] NSWSC 163 [64], in construing and applying s 131(2)(g), similarly warns against 'subvert[ing] the sanctity of settlement negotiations recognised by the exclusion for which s 131(1) provides.'

[39] Burragubba v Queensland (2017) 254 FCR 175, 191 [49] (Dowsett, McKerracher and Robertson JJ). Also see Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31, 41 (Gummow J, with whom Black CJ agrees at 32); Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1, 68-9 [278]-[279] (the Court); and Vernon v Bosley [1999] QB 18, 37 where Stuart-Smith LJ (with whom Thorpe LJ agreed) said that '[a]n analogy [with misleading the court] can be drawn with the law relating to misrepresentation.'

[40] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, 619 [161] (Kyrou AJA, with whom Weinberg and Harper JJA agreed). McFadden v Snow (1952) 69 WN (NSW) 8, 10 (Kinsella J) referred to as a prime example in Nader v Sutherland Shire Council [2008] NSWCA 265 [50]-[52] (Young CJ in Eq, with whom Beazley JA and Sackville AJA agreed).

[41] [2013] VSCA 73; (2013) 40 VR 587, 619 [161] (with whom Weinberg and Harper JJA agreed) (emphasis added).

[42] (2017) 254 FCR 175 (Dowsett, McKerracher and Robertson JJ).

[43] Ibid 190 [46] (the Court). Also see trial decision Burragubba v State of Queensland [2016] FCA 984 [137] (Reeves J).

[46] TPC v Arnotts Ltd [1989] FCA 283; (1989) 88 ALR 69, 74 (Beaumont J discussing the nature of without prejudice meetings); and Nader v Sutherland Shire Council [2008] NSWCA 265 [52] where Young CJ in Eq (with whom Beazley JA and Sackville AJA agreed) says: 'one must be particularly careful in not giving too much significance to statements made during the course of negotiations'.