Western Australian Current Acts

SUPREME COURT ACT 1935 - SECT 71

71 .         Privilege

        (1)         Subject to subsection (3), evidence of —

            (a)         anything said or done; or

            (b)         any communication, whether oral or in writing; or

            (c)         any admission made,

                in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body.

        (2)         Subject to subsection (3) —

            (a)         any document prepared in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction; or

            (b)         any copy of such a document; or

            (c)         evidence of any such document,

                is to be taken to be subject to a duty of confidence and is not admissible in any proceedings before any court, tribunal or body.

        (3)         Subsections (1) and (2) do not affect the admissibility of any evidence or document in proceedings if —

            (a)         the parties to the mediation consent to the admission of the evidence or document in the proceedings; or

            (b)         there is a dispute in the proceedings as to whether or not the parties to the mediation entered into a binding agreement settling all or any of their differences and the evidence or document is relevant to that issue; or

            (c)         the proceedings relate to a costs application and, under the rules of court, the evidence or document is admissible for the purposes of determining any question of costs; or

            (d)         the proceedings relate to any act or omission in connection with which a disclosure has been made under section 72(2)(c).

        (4)         A mediator cannot be compelled to give evidence of anything referred to in subsection (1) or (2) or to produce a document or a copy of a document referred to in subsection (2) except —

            (a)         in proceedings referred to in subsection (3)(d); or

            (b)         in proceedings relating to a costs application where there is a dispute as to a fact stated or a conclusion reached in a mediator’s report prepared under the rules of court on the failure of a party to cooperate in the mediation and the evidence or document is relevant to that issue.

        (5)         In subsections (3) and (4) —

        costs application means an application for the costs of the mediation or of the proceedings to which mediation relates.

        [Section 71 inserted: No. 27 of 2000 s. 18.]