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PRICHARD -v- M 6:8 LEGAL PTY LTD [2024] WASCA 4 (18 January 2024)

Last Updated: 18 January 2024


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : PRICHARD -v- M 6:8 LEGAL PTY LTD [2024] WASCA 4

CORAM : MITCHELL JA

HALL JA

SOLOMON J

HEARD : 13 DECEMBER 2023

DELIVERED : 18 JANUARY 2024

FILE NO/S : CACV 93 of 2022

BETWEEN : GABRIELLE MARY PRICHARD

Appellant

AND

M 6:8 LEGAL PTY LTD

First Respondent

MABEL LAI FUN CHUA

Second Respondent

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : SWEENEY DCJ

Citation : X (a pseudonym) -v- Y (a pseudonym) [2022] WADC 85

File Number : CIV 1857 of 2019




Evidence - Admissibility of statements made in the course of or for the purposes of an attempt to settle a proceeding by mediation - Construction of statutory provision extending common law 'without prejudice' privilege - Whether offers to settle made to and by a party are admissible in proceedings brought by the party against her solicitors alleging negligence in the provision of advice in relation to the settlement offers

Procedural fairness - Bias rule - Whether reasonable apprehension of bias arose from past association between a director of a corporate party and a relative of the judge

Legislation:

Supreme Court Act 1935 (WA), s 71, s 72

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant
:
In Person
First Respondent
:
G D Cobby SC
Second Respondent
:
G D Cobby SC


Solicitors:

Appellant
:
In Person
First Respondent
:
MDS Legal
Second Respondent
:
MDS Legal


Case(s) referred to in decision(s):


JUDGMENT OF THE COURT:

Summary
  1. The appellant brought the primary proceedings in the District Court of Western Australia against the respondents. The respondents were the appellant's solicitors in earlier proceedings brought by the appellant against her siblings (one of whom was the executor of her father's will) relating to her late father's estate. The appellant contended that the respondents were negligent in advising her about, and formulating a response to, an offer which the siblings had made in a court-ordered mediation of the family dispute. In pleading that claim, the appellant referred to the fact and content of the siblings' written settlement offer made to her in the mediation conference (siblings' offer) and the subsequent response made to that offer by the respondents to the executor's solicitors on the appellant's behalf (appellant's response).
  2. The respondents objected to the admissibility of evidence of the siblings' offer and the appellant's response. They contended that s 71 of the Supreme Court Act 1935 (WA) (Act) made evidence of the communications inadmissible in the primary proceedings. The respondents contended that the appellant should be required to remove references to those communications from her statement of claim. The trial judge determined the admissibility of the communications as a preliminary issue, upholding the respondents' objection and ruling that references to the communications in the appellant's statement of claim should be removed.
  3. The appellant now seeks leave to appeal against the primary judge's decision. She contends that the primary judge was subject to a reasonable apprehension of bias, that on its proper construction s 71 of the Act did not render the evidence inadmissible and that, in any event, the siblings waived any privilege over the communications.
  4. For the following reasons, none of the appellant's proposed grounds of appeal are established. Leave to appeal from the primary judge's interlocutory orders should be refused on the basis that the correctness of the orders is not attended by sufficient doubt to justify the grant of leave to appeal.
Background
  1. The appellant brought proceedings in the Supreme Court in relation to the construction of her father's will (testamentary proceedings).
  2. The testamentary proceedings were brought against:
    1. one of the appellant's brothers, Ian Prichard, both in his capacity as executor of their father's estate and his personal capacity as a beneficiary under their father's will; and
    2. three other siblings, who were also beneficiaries under their father's will,

(collectively, the siblings).

  1. The first respondent was the law firm engaged by the appellant in the testamentary proceedings. The second respondent was a solicitor employed by the first respondent, who had carriage of the appellant's testamentary proceedings. Ian Prichard, in his capacity as executor of the father's will, was represented by solicitors (executor's solicitors) in the testamentary proceedings. Ian Prichard was self-represented in his personal capacity, as were the other siblings.
  2. A court-ordered mediation was conducted in the testamentary proceedings. Shortly prior to mediation, the appellant commenced related proceedings in the Supreme Court against two of the siblings and the executor in relation to share transfers (share transfer proceedings).
  3. At the mediation, the siblings (including Ian Prichard in his capacity as executor) made a written offer to settle the testamentary proceedings and share transfer proceedings. This is the siblings' offer. The siblings' offer included provision for payment of a specified sum to the appellant from their father's estate. The siblings' offer did not specify when this amount was to be paid. The testamentary proceedings and the share transfer proceedings were to be dismissed with no order as to costs, other than the executor's costs which were to be paid out of the estate on a full indemnity basis. The siblings' offer provided for other matters which it is unnecessary to set out in these reasons. The siblings' offer was open for acceptance for two days, and acceptance could be communicated to the executor's solicitors.
  4. Within the time for acceptance of the siblings' offer, the respondents sent the appellant's response to the executor's solicitors indicating that the appellant would accept the siblings' offer on two conditions. The conditions were that payment of the settlement sum to the appellant be by a specified date, and that consent orders for dismissal of the proceedings would be exchanged for a bank cheque for the settlement sum.
  5. After a period of non-responsiveness, the executor's solicitors indicated that they treated the appellant's response as her rejection of the siblings' offer and a counteroffer which their client did not accept.
  6. The testamentary proceedings proceeded to a trial at which the appellant was substantially unsuccessful. The amount the appellant received from her father's estate was substantially less than the siblings' offer. No order for costs was made in the testamentary proceedings, other than that the executor's costs were to be paid from the estate on an indemnity basis.
  7. The share transfer proceedings were struck out with an order that the appellant pay the other parties' costs of those proceedings.
The primary proceedings
  1. After the testamentary proceedings and the share transfer proceedings were concluded, the appellant commenced the primary proceedings against the respondents, claiming damages for their alleged negligence in relation to their conduct of the earlier proceedings on her behalf. In very broad terms, the appellant claimed damages resulting from:
    1. negligent failure by the respondents to serve the initiating process for the share transfer proceedings, which allegedly led to the amount of the siblings' offer being lower than would otherwise have been the case; and
    2. negligent advice in relation to, and negligent drafting of, the appellant's response, leading to the loss of a settlement amount which would have placed the appellant in a substantially better financial position than was achieved at trial.
  2. A premise of the second aspect of the appellant's claim was that the appellant's response was correctly characterised as a counteroffer rather than an acceptance of the siblings' offer, so that the sending of the appellant's response caused the appellant to lose the benefit of the siblings' offer.
  3. Both aspects of this claim required the appellant to plead and prove the fact and content of the siblings' offer and the appellant's response. In their defence, the respondents did not admit those facts and pleaded that, under s 71 of the Act, the siblings' offer and the appellant's response were confidential and not admissible in the primary proceedings.
  4. The question of whether evidence of the facts pleaded in specified parts of the statement of claim was inadmissible by reason of s 71 of the Act was ordered to be determined as a preliminary issue. In the primary decision,[1] the primary judge ruled that evidence of those facts was inadmissible by reason of s 71 of the Act. Her Honour said:[2]
The evidence being inadmissible, the [appellant] will not be entitled at trial to refer to the [siblings' offer] - indeed anything said or done during that mediation which falls within s 71 - or the [appellant's response], or any discussions between her and her lawyer about that offer which might tend to suggest that the offer was made, or what the offer consisted of. Further, the statement of claim itself breaches the confidentiality requirements of s 71. It is not sufficient to rule the evidence inadmissible - matters currently pleaded in the statement of claim are confidential and must not be revealed to anyone, including the trial judge. It follows that those references to the [siblings'] offer and the [appellant's response] contained within the statement of claim cannot stand.
  1. An annexure to the primary decision identifies the parts of the statement of claim which must be excised. The judge concluded the primary decision in the following terms:[3]
The trial judge must not be informed of any inadmissible and confidential material. The inadmissible material must not be mentioned in evidence led at trial, nor in written or oral submissions, nor in the pleadings. If the [appellant] intends to proceed with whatever is left of her action, it will be necessary for the statement of claim to be substituted, rather than amended in the usual way (which shows how the document previously stood prior to amendment). The substitute statement of claim should only reflect the new pleading.

The current statement of claim and any confidential and inadmissible materials which were put before me on this application will be sealed, and a prominent note left for the trial judge to confine his or her reading of the pleadings to the substituted statement of claim which will have to follow. I will make programming orders following delivery of these reasons to the parties. And, finally, I make orders suppressing the parties' names to this judgment (which have therefore been anonymised) and the action number from publication in the judgment available to the general public.
  1. However, despite these observations, the only orders made by the primary judge when delivering judgment on 8 September 2022 were that the appellant file and serve a minute of proposed substituted statement of claim, the appellant pay the respondents' costs and the primary proceedings be adjourned to judge's chambers for further directions.
The appeal to this court
  1. The current appeal is against the orders made by the primary judge on 8 September 2022. The grounds of appeal and submissions, which are expressed in a way that reflects the fact that the appellant is self-represented in the appeal, raise the following substantive issues for this court's determination:
    1. Did a reasonable apprehension of bias on the part of the trial judge arise from:
    (a) the 'overwhelmingly favourable' way in which her Honour resolved the matter in the respondents' favour; and/or
    (b) her Honour's 'association through her brother to' the respondents' solicitor in the primary proceedings?

(ground 1)

  1. Does s 71 of the Act render the fact and content of the siblings' offer and the appellant's response inadmissible in the primary proceedings? (grounds 3 and 4)
  2. Was the evidence admissible on the basis that the siblings waived the privilege provided for by s 71 by referring to the siblings' offer and the appellant's response before the trial judge in the testamentary proceedings, which resulted in the publication of those matters in the trial judge's reasons? (ground 2)
  3. Because the primary orders are interlocutory, leave to appeal is required under s 60(1)(f) of the Act. The appellant's application for leave to appeal has been referred to the hearing of the appeal.
  4. The appellant and respondents both applied to adduce additional evidence in the appeal in relation to ground 1, which asserts reasonable apprehension of bias. At the hearing of the appeal, neither party objected to the evidence proposed to be adduced by the other party or sought to cross-examine the deponents of the affidavits sought to be admitted as additional evidence in the appeal. In those circumstances, we made orders granting the applications to adduce additional evidence in the appeal.
Ground 1: reasonable apprehension of bias
  1. Ground 1, which raises an issue as to the validity and acceptability of the primary proceedings, must be considered at the outset.[4]
General principles
  1. Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify the factor which it is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between that factor and the apprehended deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[5] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[6] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[7]
  2. It is well established that a reasonable apprehension of bias by prejudgment may arise from past association between a decision-maker and a person interested or otherwise involved in the proceedings.[8]
Determination of the primary proceedings favourably to the respondents
  1. Ground 1 is entirely without merit so far as it contends that a reasonable apprehension of bias arises from the 'overwhelmingly favourable' way in which the primary judge resolved the matter in the respondents' favour. As this court observed in G v W:[9]
[T]he question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision was taken. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.

There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. ... However, there is a difference between apprehending bias in the decision-making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.

(citations omitted)
  1. At base, the appellant's submissions as to this aspect of ground 1 amount to no more than a complaint about the primary judge's reasoning process. The correctness of that reasoning process will be subject to this court's scrutiny in considering grounds of appeal which assert error in the reasoning. However, the fact that the primary judge resolved the issues favourably to the respondents cannot give rise to a reasonable apprehension of bias.
  2. We have reviewed the transcript of the proceedings before the primary judge. There is nothing in the way the primary judge conducted the hearing of the preliminary issue which could possibly give rise to a reasonable apprehension of bias.
  3. In her oral submissions, the appellant also referred to what she alleged to be inconsistencies in the annexure to the primary decision which set out the parts of the statement of claim in the primary proceedings that must be excised.[10] The inconsistency identified in oral submissions involved a reference to a monetary amount being required to be deleted from some paragraphs while deletion of reference to the same amount in other paragraphs was not required. While this may reflect some oversight in the identification of inadmissible parts of a lengthy pleading it does not, in our view, even arguably give rise to a reasonable apprehension of bias on the part of the primary judge.
Past association
  1. MDS Legal Pty Ltd (MDS) has, at all material times, acted as the solicitor for both respondents in the primary proceedings. MDS briefed senior counsel from the independent bar to appear as counsel for the respondents at the hearing before the primary judge.
  2. The primary judge's brother and Ashley Macknay were directors and shareholders of MDS until 1 July 2011. They were also both partners of the firm which sold its business to MDS in 2007, and which was wound up in 2009. The primary judge's brother resigned as a director of MDS on 30 June 2011 and sold his shares in MDS to the trustee of Mr Macknay's family trust on 1 July 2011. Apart from making payments for the shares in 2011 and early 2012, Mr Macknay has had no ongoing association with the primary judge's brother since 30 June 2011. Mr Macknay's only interactions with the primary judge's brother since that time have been incidental, and Mr Macknay has never met the primary judge.[11]
  3. There is no reasonable basis for apprehending from these facts that the trial judge might be diverted from determining the primary proceedings on their merits. MDS acted as the solicitors for the respondents but there is no evidence that MDS had any financial interest in the outcome of the primary proceedings. The primary judge's brother had no financial interest in MDS from the time the primary proceedings were instituted. There is no rational basis on which a properly informed lay observer might apprehend that the long past professional association between the primary judge's brother and the respondents' solicitor might divert the primary judge from the course of deciding the case on its merits.
  4. We note that the appellant also refers to the fact that MDS and the first respondent act as solicitors for opposing parties in unrelated litigation. Nothing in those circumstances could give rise to any reasonable apprehension of bias by the primary judge in the present case.
Grounds 3 and 4: operation of s 71 of the Act
  1. Grounds 3 and 4 in substance challenge the primary judge's conclusion that s 71 of the Act rendered evidence of the fact and content of the siblings' offer and the appellant's response inadmissible in the primary proceedings.
  2. This is a question of statutory interpretation as to the application of s 71 of the Act, on its proper construction, to the circumstances referred to at [8] - [11] above. This court applies the correctness standard in reaching its own view as to the proper construction of the provisions, without according any deference to the views adopted by the primary judge. It is therefore unnecessary for this court to deal with the appellant's contentions that the primary judge's reasons involved methodological errors.
Statutory provisions
  1. Section 71 and s 72 of the Act are in the following terms:
    1. 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.

  1. Confidentiality
(1) Subject to subsection (2), a mediator must not disclose any information obtained in the course of or for the purpose of carrying out mediation under direction.

(2) Subsection (1) does not apply if —
(a) the disclosure is made for the purpose of reporting under the rules of court on any failure of a party to cooperate in a mediation; or
(b) the disclosure is made with the consent of the parties; or
(c) there are reasonable grounds to believe that the disclosure is necessary to prevent or minimize the danger of injury to any person or damage to any property; or
(d) the disclosure is authorised by law or the disclosure is required by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.
  1. Section 69 of the Act defines 'mediation under direction' to mean mediation carried out by a mediator under a direction of the Supreme Court under and subject to the rules of court. There is no dispute in the present case that the mediation at which the siblings' offer was made was a 'mediation under direction' for the purposes of the Act.
  2. These provisions are contained in pt VI of the Act, which was introduced by s 18 of the Courts Legislation Amendment Act 2000 (WA) (Amendment Act). Relevant parts of the Attorney General's second reading speech to the Bill for the Amendment Act are set out in the primary decision.[12]
Appellant's contentions
  1. The appellant's proposed construction of s 71 of the Act is not entirely clear from her written submissions. She appears to contend that the provision should not be construed to apply to proceedings in which a party to a mediation claims that their own solicitor acted negligently at the mediation in a way that caused them damage. The appellant points to the limits of advocates' immunity from suit recognised by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd,[13] as not extending to negligent advice which leads to a settlement of proceedings by agreement or to negligent advice not to settle proceedings. She says, in effect, that if s 71 of the Act made negligent statements by a party's lawyer in a mediation inadmissible then it would unfairly protect lawyers from liability in a manner that Parliament did not intend when enacting provision.
  2. In oral submissions, the appellant contended that the siblings' offer was an 'acknowledgement' rather than an admission and was therefore not protected by the statutory privilege in s 71 of the Act. In addition, the appellant submitted that, on a proper construction of the words 'for the purposes of an attempt to settle a proceeding', s 71 only protects communications and documents made in a genuine attempt to settle a matter.[14] She argued that the appellant's response negligently departed from her instructions and position to such a degree that it did not constitute part of a genuine attempt to settle the matter.[15] She also says that the appellant's response was sent after the mediation and was not made in the mediator's presence. It was not therefore 'in the course of or for the purposes of' the mediation.[16] More broadly, she contended that the reference in s 71 to 'any proceedings' should be confined to proceedings in which the mediation under direction is held, so as to be consistent with other provisions such as the subsequently enacted s 55 of the State Administrative Tribunal Act 2004 (WA).[17] The appellant also relied on the provisions of s 167(1)(q) of the Act.[18]
Principles of statutory construction
  1. This court recently reiterated the importance of statutory text to the exercise of statutory construction in Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd.[19] Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:[20]
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws ... the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (citations omitted)
  1. The primacy of the language which Parliament has chosen to use was emphasised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd:[21]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (citation omitted)
  1. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament’s intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[22]
  2. Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions.[23] Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.[24] (This is why the appellant's attempt to rely on a statutory declaration by a member of Parliament at the time of enactment of the Amendment Act was properly rejected by the primary judge). Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.[25]
  3. Also in Waroona Resources,[26] this court reiterated the summary of general principles concerning the circumstances in which words may be read into legislation in Australian Unity Property Pty Ltd v City of Busselton.[27] As noted in those decisions, in Taylor v The Owners – Strata Plan 11564,[28] the High Court recognised that there are some circumstances in which purposive construction may allow for the reading of a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation.
  4. However, identification of purpose and drafting errors is itself a matter of statutory construction, giving effect to the whole of the statutory text in its context. Where there is an obvious drafting error, the true meaning of the language is apparent from the statutory text understood as a whole in its relevant context, even though that meaning is not literal or grammatical. The objective legislative intention is revealed by the statutory text, even if the manner in which the intention is revealed involves an ungrammatical use of language in other than its ordinary sense. The objectively intended meaning must be apparent from the perspective of the reader, as opposed to the author, of the statutory text.[29]
Disposition
  1. In our view, the statutory language of s 71 and associated provisions of the Act presents an insurmountable obstacle to acceptance of the appellant's construction of s 71 of the Act.
  2. The siblings' offer was plainly a written communication, and a document prepared, in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction. Unless one of the exceptions in s 71(3) applies, that written communication, any copy of the document and any evidence of the document, is 'to be taken to be subject to a duty of confidence'. More importantly, subject to s 71(3), that written communication, any copy of the document and any evidence of the document is not admissible in any proceedings before any court, tribunal or body.
  3. The same conclusions apply in relation to the appellant's response, sent after the mediation conference, to the siblings' offer which was made in the mediation conference. The appellant's response formed part of the attempt to settle the proceedings in the mediation. Although not made in the mediator's presence, it was a communication made, and document prepared, in the course of and for the purposes of an attempt to settle a proceeding by mediation under direction. Questions may well arise in respect of communications that are more removed, either temporally or contextually, from the mediation. But it is not necessary to explore those boundaries here. The nexus both temporally and contextually in this matter is beyond question.
  4. Plainly, the provision for inadmissibility is not confined to admissibility in the proceedings which are the subject of mediation. Nor is it confined to proceedings between the parties to the mediation. The exceptions in s 71(3) are very limited and are clearly more confined than the exceptions to the common law 'without prejudice' privilege. It is apparent from the statutory text and the Attorney General's second reading speech that the purpose of the introduction of pt VI of the Act was to define and extend the scope of the common law privilege. The enactment of specific exceptions to the rule makes it more difficult to imply additional exceptions.
  5. None of the exceptions in s 71(3) of the Act applied to make evidence of the siblings' offer or the appellant's response admissible in the primary proceedings. It was common ground that the siblings had not consented to the admission of the evidence in the primary proceedings, so s 71(3)(a) was not engaged. There was no dispute in the primary proceedings as to whether the parties at the mediation entered into a binding agreement to settle the testamentary proceedings and the share transfer proceedings. As noted above, it was a premise of the appellant's claim that the appellant's response was correctly characterised as a counteroffer that the siblings did not accept. The respondents did not dispute that premise in the primary proceedings. Therefore, s 71(3)(b) was not engaged. The primary proceedings did not relate to a costs application, so s 71(3)(c) was not engaged. There is no suggestion that s 71(3)(d) was engaged.
  6. There might be some implications that should be made to avoid s 71 operating to establish a mediation room as an island of immunity from the application of the law in a manner Parliament could not have objectively intended. It would be at least curious that criminal conduct or tortious acts, such as fraudulent statements inducing a party to enter into a settlement agreement or unlawful threats procuring a benefit, should be immunised from criminal and civil proceedings through an evidentiary rule. No doubt circumstances of that nature may give rise to a dispute about whether the parties entered into a binding agreement and whether the exception in s 71(3)(b) therefore applies. But implications may be justified even in circumstances where no such dispute is formally agitated.
  7. For example, it might be that the reference to an 'attempt to settle' in s 71 is to a genuine attempt to settle by lawful means, so that criminal conduct, professional misconduct, threats or fraudulent statements stand outside the protection of the provision. It may be that, in some circumstances, improper conduct will mean that there is no mediation at all. Suggestions of limitations of this kind in provisions providing for a statutory privilege in relation to statements and conduct in mediation have been made from time to time.[30]
  8. However, it is unnecessary for this court to form any view as to whether implications of the kind suggested in the previous paragraph should be drawn in the case of s 71 of the Act. None of those suggested implications, if made, would assist the appellant in the present case.
  9. There is no merit to the appellant's submissions that the siblings' offer was an 'acknowledgement' rather than an admission which was therefore not protected by the statutory privilege in s 71 of the Act. The substantive distinction between an 'acknowledgement' and an admission is difficult to perceive. In any event, whether or not the protection offered by the common law 'without prejudice' privilege extends beyond admissions,[31] the protection offered by s 71 of the Act is clearly not confined to admissions. This is evident from the language of s 71(1)(a) - (c), which refers to 'anything said or done' and 'any communication' as well as 'any admission'.
  10. Nor can we accept that the appellant's response negligently departed from the appellant's instructions to a degree that it did not constitute part of a genuine attempt to settle the matter. The appellant's plea was that she instructed the second respondent to send the appellant's response in the form it was sent.[32] It is uncontentious that the terms of the appellant's response were provided to the appellant before it was sent to the executor's solicitors.[33] On the appellant's case, which is premised on the appellant's response constituting a counteroffer, she did not properly understand the effect of the appellant's response. On the appellant's case, that lack of understanding was a product of the respondents' negligent failure to provide her with advice as to the true legal effect of the appellant's response. However, irrespective of any misunderstanding by the appellant or the cause of that misunderstanding, the appellant's response was, on the appellant's own case, sent on her express instructions and was an attempt to settle the proceedings. As a response to a written offer made in the mediation conference, the appellant's response was made in the course of or for the purposes of an attempt to settle the proceedings by mediation under direction.
  11. The appellant's reference to s 167(1)(q) does not assist her argument. That provision confers a general rule making power for enabling and regulating mediation generally. It does not authorise a modification of the privilege created by s 71 of the Act in the case of a mediation under direction.
  12. It may be accepted that the purposes of s 71 and s 72 include the promotion of free discussion at mediations to maximise the opportunity for settlement of proceedings by agreement. It may also be accepted that such a purpose is not advanced by preventing a party from bringing proceedings in negligence against their own solicitor in respect of the solicitor's conduct in, or in relation to, the mediation. However, as the primary judge observed,[34] nor does an incidental effect of preventing a party from proceeding with a claim in negligence against their own legal representative impede the achievement of that general purpose. Further, as noted above, a purposive construction must still accommodate the statutory language. As Gageler and Keane JJ observed in Taylor:[35]
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
  1. In the present case, the statutory language Parliament has chosen to adopt in s 71 of the Act is intractably inconsistent with the appellant's construction of the provision. To construe the statutory text so as to carve out an exception for proceedings where a party to a mediation seeks to sue their own solicitor for negligence would involve redrafting rather than interpreting the provision. The fact that other provisions applying in different forums such as the State Administrative Tribunal are differently expressed does not assist the appellant. We are required to apply s 71, which is the provision that Parliament has enacted to apply to the present case.
  2. It is unnecessary in this case to determine the extent to which private communications between a party to a mediation under direction and that party's own legal representative are captured by s 71 of the Act. Whatever may be the position regarding private communications between a party and their own legal representatives, the inadmissible communications and documents in this case are the communications between parties to the mediation. It is the siblings' offer and the appellant's response which the appellant seeks to prove in order to establish the loss claimed in the primary proceedings. The primary judge was correct to find that s 71 of the Act made evidence of the siblings' offer and the appellant's response inadmissible in the primary proceedings in circumstances where none of the exceptions provided for in s 71(3) applied.
  3. For these reasons, neither the siblings' offer nor the appellant's response are admissible in the primary proceedings to prove the claim which the appellant sought to advance before the primary judge. The primary judge was correct to conclude that the parts of the statement of claim referring to the siblings' offer and the appellant's response should be removed. That conclusion is sufficient to support the interlocutory order requiring the appellant to file a substituted statement of claim in the primary proceedings.
Ground 2: waiver
  1. Ground 2 is difficult to follow. However, putting aside matters which are clearly misconceived, it appears to raise the question of whether the siblings have waived the statutory privilege created by s 71 of the Act. The appellant confirmed this to be the case in her oral submissions in the appeal.[36]
  2. The primary judge in effect held that the privilege created by s 71 of the Act is not subject to waiver.[37] However, it has been held, at single judge level in New South Wales, that provisions of the Civil Procedure Act 2005 (NSW) which are similarly structured to s 71 and s 72 of the Act operate subject to the waiver doctrine.[38]
  3. In the present case it is not necessary for this court to resolve this difference of approach. Even assuming waiver to be possible, it is not reasonably arguable that all the siblings waived the privilege under s 71 of the Act. The conduct on which the appellant relies as constituting waiver was that of counsel for the executor in the testamentary proceedings in referring to the siblings' offer and the appellant's response for the purposes of seeking a costs order against the appellant in those proceedings. However, this was not conduct by the other siblings. Contrary to the appellant's submissions,[39] there is no basis in the evidence for saying that counsel for the executor was acting on their behalf in engaging in that conduct before the trial judge. Counsel was recorded in the trial judge's decision as appearing only for the executor.[40] The covering letter providing the mediation material to the court indicated that the solicitors acted only for the executor and that Ian Prichard acting in his personal capacity took a different position in relation to costs.[41] The primary judge was correct to find that the fact that the other siblings had not waived privilege was fatal to the appellant's argument.[42]
  4. The same can be said in relation to the appearance before a registrar of the Supreme Court in the testamentary proceedings on 26 March 2014. Some discussion about and disclosure of the siblings' offer and the appellant's response took place during that appearance, and the transcript appears to record counsel having appeared for Paul Pritchard as well as Ian Pritchard.[43] There is no indication or suggestion however of the other siblings (Michael and Louise) having been represented at that hearing.
  5. This is a sufficient basis for rejecting ground 2.
Anonymisation of reasons
  1. The primary judge anonymised the primary decision to protect the confidentiality of the mediation process. There was a degree of artificiality in that approach, as the trial judge in the testamentary proceedings had published reasons, available on the court’s website, which identify the parties and disclosed the siblings' offer and the appellant's response.[44] While the statutory privilege as to the admissibility of the communications has not been waived, the confidentiality sought to be protected by the provisions has been lost. In the circumstances, anonymising the identity of the parties in these reasons appears to us to be futile, we have therefore not done so.
Orders
  1. In our view, the correctness of the primary orders is not attended by sufficient doubt to justify the grant of leave to appeal from an interlocutory decision. The following orders should be made in the appeal:
    1. Leave to appeal is refused.
    2. The appeal is dismissed.

We would hear from the parties on questions of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RL
Associate to the Honourable Justice Mitchell

18 JANUARY 2024

[1] X (a pseudonym) v Y (a pseudonym) [2022] WADC 85 (primary decision).
[2] Primary decision [142].
[3] Primary decision [144] - [145].

[4] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [3] (Gummow ACJ), [117] (Kirby & Crennan JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].
[5] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37] - [38], [67], [162], [194], [225].
[6] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].
[7] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].
[8] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272, 275; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74 (Deane J); Ebner [24]; Mueller v Que Capital Pty Ltd [No 2] [2016] WASCA 157 [31].
[9] G v W [2021] WASCA 180 [62] - [63].
[10] Appeal ts 27 - 32.
[11] See appellant's affidavit sworn 7 March 2023 and the affidavit of Ashley Macknay sworn 31 May 2023, which were admitted as additional evidence in the appeal.

[12] Primary decision [69].
[13] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1 [5] - [6], [38] - [39], [45], [48] - [51].
[14] Appeal ts 15 - 16.
[15] Appeal ts 17 - 19.
[16] Appeal ts 11 - 13.
[17] Appeal ts 12, 14, 18 - 19.
[18] Appeal ts 11.
[19] Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd  [2023] WASCA 73  [28] - [31].
[20] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28].
[21] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[22] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
[23] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26].
[24] Certain Lloyd's Underwriters [25].
[25] Australian Education Union v Department of Education [2012] HCA 3; (2012) 248 CLR 1 [26] - [28].
[26] Waroona Resources [35] - [40].
[27] Australian Unity Property Pty Ltd v City of Busselton [2018] WASCA 38 [87] - [91].
[28] Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531.
[29] Waroona Resources [39].
[30] See, for example, Winters v Fogarty [2017] FCA 51 [141]; Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252, 266; Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 940 [13] - [14].
[31] Cf Samnakay v Schofield [2013] WASCA 138 [43] - [45].
[32] Statement of Claim, par 57 (Blue AB 76).
[33] See Green AB 57.
[34] Primary decision [101].
[35] Taylor [65].
[36] Appeal ts 23.
[37] Primary decision [108] - [115].
[38] Woollahra Municipal Council v Secure Parking Pty Ltd [No 2] [2015] NSWSC 452 [27].
[39] Appeal ts 24 - 27.
[40] Prichard v Prichard [2015] WASC 170 (S).
[41] Green AB 88 - 89.
[42] Primary decision [117].
[43] Green AB 68.
[44] See Prichard v Prichard [2015] WASC 170 (S) [11] - [18].

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