COMMISSIONER OF HIGHWAYS [2025] SASC 152

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (AUXILIARY ASSOCIATE JUSTICE FLOURENTZOU) SCCIV-16-678; SCCIV-16-679; SCCIV-16-680; SCCIV-16-681 Appellant: COMMISSIONER OF HIGHWAYS Counsel: MS E DENBIGH - Solicitor: CROWN SOLICITOR (SA) Respondent (CIV-24-010797): TAMMY KOUKOS, GEORGE KOUKOS, DOREEN KOUKOS AND TRIANI KOUKOS, GEORGIOUS KOUKOS & DOREEN KOUKOS Counsel: MR C JACOBI KC - Solicitor: GRIFFINS LAWYERS Respondent (CIV-24-010800): TAMMY KOUKOS, GEORGE KOUKOS, DOREEN KOUKOS AND TRIANI KOUKOS, GEORGIOUS KOUKOS & DOREEN KOUKOS Counsel: MR C JACOBI KC - Solicitor: GRIFFINS LAWYERS Respondent (CIV-24-010801): GEORGE AND ELIA KOUKOS AS REPRESENTATIVES OF THE ESTATE OF MARIA KOUKOS AND TRIANI KOUKOS, GEORGIOUS KOUKOS & DOREEN KOUKOS Counsel: MR C JACOBI KC - Solicitor: GRIFFINS LAWYERS Respondent (CIV-24-010803): TAMMY KOUKOS, GEORGE KOUKOS, DOREEN KOUKOS AND TRIANI KOUKOS, GEORGIOUS KOUKOS & DOREEN KOUKOS Counsel: MR C JACOBI KC - Solicitor: GRIFFINS LAWYERS Hearing Date/s: 10/02/2025 File No/s: CIV-24-010797; CIV-24-010800; CIV-24-010801; CIV-24-010803 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. COMMISSIONER OF HIGHWAYS v KOUKOS & ORS [2025] SASC 152 Judgment of the Honourable Justice McIntyre 10 September 2025 REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - PROCEEDINGS FOR COMPENSATION - SOUTH AUSTRALIA - APPEALS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY This is an appeal from a decision of an Auxiliary Associate Justice of the Supreme Court granting the respondents’ interlocutory application for orders in relation to two valuation reports (the Thamm reports). The decision, which concerns four related actions being heard together, found that the Thamm reports were inadmissible except with the consent of parties pursuant to s 23BA of the Land Acquisition Act 1969 (SA) (the LAA). The appellant appeals on three grounds, contending that the primary judge erred in her construction and application of s 23BA of the LAA and s 67 of the Evidence Act 1929 (SA). The respondents maintain that s 23BA of the LAA applies to the Thamm reports and that, absent consent, they are inadmissible. -- 1 of 13 -- Held, granting leave to appeal but dismissing the appeal: 1. The phrase “anything said or done” in s 23BA of the LAA extends to the Thamm reports and is not confined only to concessions, admissions and offers made by a party in the course of negotiations. 2. The Thamm reports were produced “in the course of a settlement conference” and are inadmissible unless all parties consent to their tender. 3. Consent to tender the Thamm reports was not expressed in explicit terms and cannot be inferred from joint instructions or the expert’s terms of engagement. Uniform Civil Rules 2020 (SA) rr 74.3, 213.1; Land Acquisition Act 1969 (SA) ss 23A, 23BA, 23C; Evidence Act 1929 (SA) s 67C; Legislation Interpretation Act 2021 (SA) s 10, referred to. Falland v Symbion Health Ltd (2010) 269 LSJS 189, considered. -- 2 of 13 -- COMMISSIONER OF HIGHWAYS v KOUKOS & ORS [2025] SASC 152 Civil: Appeal McINTYRE J: 1 This is an appeal from a decision of an Auxiliary Associate Justice of the Supreme Court, granting the respondents’ interlocutory application for orders in relation to two valuation reports prepared by Mr Alex Thamm (Mr Thamm) of CBRE Valuation & Advisory Services. The Auxiliary Associate Justice delivered reasons for her decision on 18 October 2024 and made orders that Mr Thamm’s reports are not admissible except with the consent of all parties. There are four related actions being heard together.1 The decision and this appeal are relevant to each of the matters. 2 As this is an interlocutory decision. leave to appeal is required under r 213.1 of the Uniform Civil Rules 2020 (SA) (‘UCR’). For the reasons that follow, I grant leave to appeal the decision but dismiss the appeal. Background facts 3 The respondents owned four parcels of land at Undo Road, Waterloo Corner SA 5110. By notices of acquisition published in the South Australian Government Gazette on 2 June 2016 the appellant acquired the respondents’ interest in that land (‘the acquisition’). The appellant made offers of compensation to the respondents and paid that compensation into the Supreme Court. Those offers were made consistent with independent expert valuation reports obtained by the appellant (‘the Brooke reports’). The respondents obtained their own valuation report (‘the Christodoulou report’). Those reports differed. A conference was convened on 7 June 2021 between the valuers under s 23A(7) of the Land Acquisition Act 1969 (SA) (‘LAA’). The valuers were unable to resolve their differences. 4 A settlement conference was requested by the respondents under s 23BA of the LAA. A conference coordinator was appointed on 12 August 2022. The conference coordinator gave written directions to the parties by letter dated 23 August 2022 which, inter alia, reminded the parties that:2 Evidence of anything said or done in the course of a settlement conferences is inadmissible in proceedings before a court (other than proceedings under Act, s36) except by consent of all parties to the proceedings: s 23BA(3). 5 On 12 September 2022, a settlement conference was held and adjourned. The conference coordinator noted in his directions that the parties had agreed to jointly instruct a third independent valuer to provide a further expert valuation of 1 CIV-24-010797; CIV-24-010800; CIV-24-010801; CIV-24-010803. 2 Appeal Book at 10. -- 3 of 13 -- [2025] SASC 152 McIntyre J 2 the land. The appellant invited the respondents to choose one of three nominated valuers. That list included Mr Thamm. 6 On 7 October 2022, the parties agreed to instruct Mr Thamm. On 5 April 2023, a joint letter of instruction, signed by both parties’ legal representatives, was sent to Mr Thamm (‘joint instructions’).3 On 13 December 2023, the parties received Mr Thamm’s valuation reports in relation to the land; one report dealt with three of the allotments and the other dealt with the fourth (‘the Thamm reports’).4 The parties continued discussions but were unable to resolve their differences. On 24 January 2024, the conference coordinator directed that the settlement conference be closed.5 7 On 20 July 2024, the respondents initiated proceedings by way of cross claim in the Supreme Court under s 23C of the LAA in relation to their claim for compensation (‘proceedings’). There was correspondence between the parties in which the respondents indicated that they did not consent to the use of the Thamm reports in the proceedings. The appellant maintains an entitlement to rely on the reports.6 It was determined that the dispute about admissibility of the Thamm reports would be heard as a preliminary point. Leave to appeal 8 The impugned decision was an interlocutory decision by a Judicial Officer of the Supreme Court. Accordingly, leave is required under r 213.1(1)(a) of the UCR. In determining whether to grant leave it is necessary to consider: a. Whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; b. Whether the decision raises an issue of general principle or importance; and c. Whether allowing the decision to stand would result in a substantial injustice to the appellant. 9 The appellant raises three grounds of appeal. Grounds 1 and 2 relate to the interpretation and application of s 23BA of the LAA. Ground 3 relates to the application of s 67C of the Evidence Act 1929 (SA) (‘the EA’). 10 For the reasons that follow, it is my view that the grounds of appeal are reasonably arguable and that they raise questions of general importance in relation to the proper construction of s 23BA(3) of the LAA. Whilst I am not certain that allowing the decision to stand would result in a substantial injustice to the 3 Appeal Book at 16 – 27. 4 Appeal Book at 30 – 132. 5 Appeal Book at 133. 6 Appeal Book at 13 – 14. -- 4 of 13 -- [2025] SASC 152 McIntyre J 3 appellant, I nonetheless consider that the interests of justice support a grant of leave to appeal. The grounds of appeal 11 The appellant says that the primary judge erred in her construction of s 23BA(3) of the LAA; the application of s 23BA(3) of the LAA to the Thamm reports; and in her application of s 67C of the EA. The grounds of appeal are set out in the Notice of Appeal as follows: Ground 1: misconstruction of s 23BA of the Land Acquisition Act 1969 (SA) 1 The learned Judge erred in her construction of section 23BA(3) of the Land Acquisition Act 1969 (SA). Her Honour should have found that the section was concerned with concessions, admissions and offers made by a party in the course of negotiations. Ground 2: misapplication of s 23BA of the Land Acquisition Act 1969 (SA) 2 Further and in the alternative to ground 1, the learned Judge erred in her application of s 23BA(3) of the Land Acquisition Act 1969 (SA) to the Thamm reports. In particular, she: 2.1 erred in finding that the valuation reports prepared by an independent expert witness, Mr Alex Thamm (‘the Thamm reports’) constituted “evidence of anything said or done in the course of a settlement conference”. Her Honour should have found that the Thamm reports were not said or done in the course of a settlement conference for the purposes of section 23BA(3) of the Land Acquisition Act 1969 (SA); and 2.2 erred in finding that the parties had not consented to the Thamm reports being used in these proceedings. Ground 3: misapplication of s 67C of the Evidence Act 1929 (SA) 3. Further to grounds 1 and 2, the learned Judge erred in finding that the Thamm reports were inadmissible by reason of section 67C of the Evidence Act 1929 (SA). In particular, the learned Judge: 3.1 should have found that s 67C of the Evidence Act had no role to play given the existence of section 23BA(3) of the Land Acquisition Act 1969 (SA). 3.2 erred in finding that the Thamm reports were a “communication” made in connection with an attempt to negotiate a settlement within the meaning of section 67C of the Evidence Act 1929 (SA). 3.3 erred in failing to consider the exceptions set out in section 67C of the Evidence Act 1929 (SA). The learned Judge should have found that the exception in section 67C(2)(d) of the Evidence Act 1929 (SA) applied, given the joint instructions provided to the independent witness and the terms on which the independent witness was engaged. 3.4 failed to provide adequate reasons to support her decision that section 67C of the Evidence Act 1929 (SA) applied to the Thamm reports. -- 5 of 13 -- [2025] SASC 152 McIntyre J 4 General principles & legislation 12 The appeal relates to two legislative provisions. Both enact rules of evidence. These provisions should be construed having regard to the text, context and purpose of the Act in question.7 The first is s 23BA of the LAA which deals with settlement conferences and relevantly provides as follows: 23BA—Settlement conference (1) The Authority— (a) may, before referring a matter to Court under section 23C; and (b) must, on an application by a claimant under section 23C(1a), convene a conference under this section (a settlement conference) in relation to the relevant matter. (2) The following provisions apply in relation to a settlement conference: (a) the Authority must appoint a conference coordinator to conduct the settlement conference; (b) the conference coordinator must hold qualifications prescribed by the regulations; (c) the conference coordinator must— (i) fix a time and place for the settlement conference; and (ii) advise the persons referred to in paragraph (f) of the time and place of the settlement conference; (d) the conference coordinator may, by notice in writing, give such directions as the coordinator considers necessary for the purposes of the settlement conference (including, to avoid doubt, directions to attend at the time and place fixed under paragraph (c)); (e) the Authority and the claimant must provide to each other party any valuation reports in relation to the matter within the period specified by the conference coordinator; (f) the following persons are entitled to attend a settlement conference: (i) the conference coordinator; (ii) a representative of the Authority; (iii) the claimant and the claimant's legal representative (if any), (however, nothing in this paragraph prevents other persons from attending the settlement conference); 7 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. -- 6 of 13 -- [2025] SASC 152 McIntyre J 5 (g) the conference coordinator, and the settlement conference, must comply with any other requirements set out in the regulations. (3) Evidence of anything said or done in the course of a settlement conference is inadmissible in proceedings before a court (other than proceedings under section 36) except by consent of all parties to the proceedings. … 13 The second relates to s 67C of the EA which provides as follows: 67C—Exclusion of evidence of settlement negotiations (1) Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings. (2) Such evidence is, however, admissible if— (a) the parties to the dispute consent; or (b) the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to— (i) enable a proper understanding of the other evidence that has already been adduced; or (ii) or avoid unfairness to any of the parties to the dispute; or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or (e) the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or (f) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (g) the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or (h) the communication was made, or the document was prepared, in furtherance of— (i) the commission of a fraud or an offence; or (ii) the doing of an act that renders a person liable to a civil penalty; or (iii) the abuse of a statutory power. -- 7 of 13 -- [2025] SASC 152 McIntyre J 6 (3) Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document. Section 23BA 14 Ground 1 of the appeal raises the proper construction of the expression “anything said or done in the course of a settlement conference” in s 23BA(3). Ground 2 deals with the proper application of s 23BA(3). It is convenient to deal with these grounds together. The submissions 15 The appellant contends that s 23BA is concerned with concessions, admissions and offers made by a party in the course of negotiations but does not extend to the Thamm reports which were produced by an independent expert jointly engaged by the parties and based on objective facts. The appellant says that s 23BA(3) of the LAA is a statutory expression of common law settlement privilege. The appellant relies upon the second reading speech to the Land Acquisition (Miscellaneous) Act Amendment Bill8 to support that contention and says, moreover, that the statutory construction is informed by the context in which s 23BA(3) operates and the underlying common law regarding settlement privilege. In the second reading speech, the Minister stated that the settlement conferences were to be conducted on “a without prejudice basis”. The appellant points to the policy behind common law “without prejudice” communications being to encourage and facilitate negotiations by protecting communications, concessions and admissions by the parties from being adduced in any later litigation. However, mere agreement that an expert report is to be procured in the course of negotiations is not sufficient to attract the common law settlement privilege.9 The appellant contends that s 23BA(3) ought to be construed as operating in the same way. 16 The appellant further contends that its position is supported by the fact that the Thamm reports are expert reports as defined in the UCR. The appellant refers to UCR r 74.3(3) requiring service of reports on the other party whether or not the party intends to rely on it at trial. It is further noted that the joint instructions expressly indicated that Mr Thamm was to have regard to, and comply with, the requirements of Part 14 of the UCRs. 17 The respondent on the other hand says that s 23BA makes inadmissible, subject to any consent, anything said or done by participants in the course of a settlement conference. It is further contended that this includes anything done by participants as part of the conference process such as obtaining a report or having calculations performed which are directed to settlement. Participants include the conference convenor, a party or other participant such as an expert. It is said that 8 South Australia, Parliamentary Debates, House of Assembly, 25 September 2019, 7561 (The Honourable V.A. Chapman, Deputy Premier of South Australia and Attorney-General). 9 Falland v Symbion Health Ltd (2010) 269 LSJS 189 at [22] (‘Falland’). -- 8 of 13 -- [2025] SASC 152 McIntyre J 7 the words “in the course of a settlement conference” includes acts preparatory to, inclusive of and incidental to, the conference process and applies, as in this case, during a period between the convening of two or more conferences.10 Consideration 18 The scope of the evidentiary rule in s 23BA(3) LAA has two elements “anything said or done” and “in the course of a settlement conference”. The former element appears to be the issue raised in ground 1 of the appeal. Was the learned Auxiliary Associate Justice correct to find that the words “anything said or done” did not apply only to concessions, admissions and offers made by a party in the course of negotiations. The latter element is the issue raised in ground 2.1 where it is said that “Her Honour should have found that the Thamm reports were not said or done in the course of a settlement conference”. 19 I do not accept the appellant’s submissions in relation to the UCR. The UCR provide for, inter alia, the form of expert reports and for disclosure of those reports but do not in my view have any bearing on the construction of s 23BA(3) of the LAA. 20 The evidentiary rule in s 23BA(3) must be read as a whole and in the context of the legislative scheme. The section has the purpose of advancing the public interest in the resolution of disputes about compulsory acquisitions of land in an efficient manner. The combined effect of s 23BA and s 23C(1a) is to compel a claimant to apply for a settlement conference and to take part in the conference prior to embarking on litigation. The LAA requires not only attendance at a settlement conference but also participation in the process. Failure to comply with directions of the conference coordinator without reasonable excuse constitutes an offence under s 23BA(5). It is moreover open to the appellant to oppose a matter proceeding further in the absence of a claimant taking part in a settlement conference. Section 23BA conferences are therefore different to other forms of settlement conference by reason of these mandatory features. 21 The appellant contends that “anything said or done” is concerned with “concessions, admissions and offers made by a party in the course of negotiations”. It is uncontentious that Mr Thamm was not aware of the respective positions of the parties. He did not represent either of the parties and had no authority to make concessions, admissions or offers. He provided expert reports at the joint request of the parties. In my view the appellant’s contention is not tenable in the light of the statutory text. The term is expansive and the use of the word “anything” is all encompassing. There is no warrant in the section to restrict the term as the appellant contends. Given the mandatory nature of this process, and that things may be said or done as a result of the compulsion to attend and engage, it is understandable that anything said or done in the process would be inadmissible in later proceedings unless by consent. The appellant’s construction of s 23BA is not assisted by the second reading speech. The Minister’s description of the statutory 10 Respondent Written Submissions at [9] (FDN 7). -- 9 of 13 -- [2025] SASC 152 McIntyre J 8 settlement conferences being conducted on a “without prejudice basis” is consistent with what is contended by the respondents and does not provide a foundation for equating this statutory rule of evidence with the applicable common law rule. 22 The appellant further seeks to restrict the operation of s 23BA(3) to things said or done by “the parties”. Again, given the text of the section and the context there appears to be no proper basis to do so. Section 23BA(2)(f) sets out who is entitled to attend a settlement conference. It is cast in expansive terms. To be effective, the evidentiary rule in s 23BA(3) must as a matter of logic apply to all participants in the conference including the conference convenor, a party or other participant such as an expert. 23 This then leads to a consideration of the extent of the exclusionary rule and the issues raised by ground 2.1 of the appeal. To be the subject of the exclusion, the thing must be said or done “in the course of the settlement conference”. In other words, were the Thamm reports produced in the course of the conference? 24 The expression “in the course of” is significantly broader than “at”, “during” or “within”. The expression takes its meaning from the context as to what a settlement conference is and the course that the conference takes. A settlement conference is convened under s 23BA(1). The conference co-ordinator fixes a time and place for the settlement conference. That conference may, as it was in this case, be adjourned to another date and time. The power to conduct a conference extends to permit more than one such meeting.11 The settlement conference continues at such times and places until the conference coordinator directs it is at an end. 25 The conference coordinator may give “such directions as the coordinator considers necessary for the purposes of the settlement conference”.12 These may occur before, during or after the convened meeting. As outlined above, it is an offence not to comply with such directions. Where there are multiple meetings, the LAA envisages that various actions will occur. These include the taking of steps which comply with directions, the voluntary exchange of offers and the provision of reports. These activities are in my view an integral part of the settlement conference. They are properly regarded as being “in the course of a settlement conference”, in the sense that they are the product of a direction of the conference coordinator or of an agreement reached between the parties to further the settlement process. They include anything done by participants as part of the conference process such as obtaining a report directed to settlement. 26 In this case the settlement conference was held and adjourned on 12 September 2022. The conference coordinator’s directions noted the agreement to jointly instruct an independent valuer ultimately determined to be Mr Thamm. 11 See Legislation Interpretation Act 2021 (SA) s 10. 12 Land Acquisition Act 1969 (SA) s 23BA(2)(d) (‘LAA’). -- 10 of 13 -- [2025] SASC 152 McIntyre J 9 Plainly, the agreement was reached in an attempt to resolve an impasse in the settlement negotiations. The Thamm reports were received by the parties in December 2023. Negotiations continued. The matter did not resolve and the coordinator directed that the settlement conference be closed in January 2024. 27 I consider that the Thamm reports were produced as a thing done “in the course of the settlement conference”. The joint letter of instructions was an act done for the purpose of the conference. It was noted in the conference coordinator’s directions. It was plainly for the purpose of furthering settlement negotiations. The Thamm reports were prepared in response to the joint instructions. A further conference was not convened but negotiations continued. The fact that the process then concluded does not preclude the joint letter of instruction and the resulting reports being viewed as acts done in the course of the settlement conference. Accordingly, the Thamm reports are inadmissible unless all parties consent to their tender. Ground 2.2 – did the parties consent? The submissions 28 If s 23BA(3) applies, the appellant contends that the parties consented to the admissibility and use of the Thamm reports. The appellant relies upon a decision of Bleby J in Falland v Symbion Health Limited (‘Falland’),13 contending that:14 If the Thamm Reports were intended to be privileged from production in proceedings, on the reasoning in Falland, they could only retain privilege if there was clear agreement to that effect by the parties or where, under the relevant Court rules, a shadow expert report is engaged. The principles of full and frank disclosure of directly relevant documents and especially that of the Thamm Reports are important to ensure the integrity of the process of litigation. In this matter, there is no clear agreement of the type envisaged in Falland, and indeed, the parties consented specifically to the use of the Thamm Reports in the following ways. 29 The appellant then refers to the joint instructions to Mr Thamm, the terms of engagement and the communications between the parties on engaging Mr Thamm to support the contention that the respondents consented to the use of the Thamm reports in subsequent proceedings. 30 Paragraph three of the joint instructions to Mr Thamm stated that:15 The purpose of this letter is for the Commissioner and Claimants to jointly retain your services for the following: a. preparation of an expert report that will inform the Commissioner and the Claimants of the market value of the Land and other heads of compensation as at the date of Acquisition in accordance with section 25 of the Land Acquisition Act 1969 (LAA); 13 (2010) 269 LSJS 189. 14 Appellant Written Submissions at [30] (FDN 3). 15 Appeal Book at 17, [3]. -- 11 of 13 -- [2025] SASC 152 McIntyre J 10 b. participation in a joint conference with the Commissioner’s and the Claimants’ respective valuers together (if required); and c. to otherwise appear to give evidence within the field of your expertise should the matter be litigated. 31 The terms of engagement that were sent to the parties by Mr Thamm16 were tailored for the purposes of this matter and read as follows: Confidentiality a. Subject to paragraph (b) of this clause, any valuation service is confidential as between the Company and the Reliant Party as specifically stated in the valuation advice/report. Neither the whole of the report, nor any part of it may be disclosed, published in any document, statement, circular, or otherwise by any party except as genuinely and necessarily required for the purpose of this engagement, nor in any communication with any third parties, without the prior written approval of the other parties. b. A party may disclose the report or any part of it; i. to an employee, agent or advisor the Commissioner, on a “need to know” and confidential basis; ii. as required by law or a court order; iii. in accordance with any Parliamentary or constitutional convention; or iv. for the purposes of prosecuting or defending proceedings. 32 The appellant contends that a fair and just reading of the joint instructions and the terms of engagement leads to the inference that, at the time the Thamm reports were obtained, the objective purpose was twofold. First, to obtain an independent expert report that would inform negotiations between the parties and second for use in litigation if the matter did not resolve by negotiation. It is said that if further consent of either party was required prior to the disclosure of the reports, that requirement would have been expressly stated in the agreed joint instructions. It is said that there is nothing in the joint instructions to suggest that there was an agreement, express or otherwise, that the Thamm reports were to be treated on a without prejudice basis. 33 The respondents on the other hand deny that they agreed to the use of documents prior to seeing them irrespective of their contents. It is said that properly understood the joint letter of instruction addresses the form of the reports and the future availability of the expert should the matter be litigated. The letter did not expressly address consent to use of the report in subsequent proceedings. It is said that the appellant’s contention is at best an implication from the joint letter and is unsupportable. 16 Appeal Book at 91. -- 12 of 13 -- [2025] SASC 152 McIntyre J 11 Consideration 34 Falland is a case concerning common law privilege. The issue in Falland is whether there had been an agreement that reports prepared at the time of settlement negotiations would only be used for the purpose of settlement. No such agreement is necessary in the circumstances of this matter. The fact that the joint instructions did not refer to the reports being provided on a without prejudice basis is irrelevant. The evidentiary rule in s 23BA(3) attaches to documents by operation of law if they fall within the statutory description. I have found that the Thamm reports do fall within that description. The issue is then whether the parties nonetheless consent to admit the material in proceedings notwithstanding the provisions of s 23BA(3). I do not consider that such consent can be inferred from the joint instructions or the terms of engagement. It is my view that consent ought to be expressed in explicit terms. That is not the case here. I add, but do not decide, that even had such consent been given at the time the reports were requested it may be possible for such consent to be withdrawn. Ground 3 - section 67C of the EA 35 In view of my findings in relation to grounds 1 and 2 of the appeal, it is unnecessary to determine ground 3. Whilst it is not strictly necessary to determine the issue, I do not disagree with the learned Auxiliary Associate Justice’s conclusion that s 67C of the EA likely also applies. The purpose of s 23BA of the LAA and s 67C of the EA is consistent. There is no issue of principle in relation to overlapping exclusionary principles of the law of evidence both requiring application. 36 I will hear the parties on the issue of costs. -- 13 of 13 --