Deeley v Hicks [2001] QLRT 9

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In Re Ronald Leslie Deeley and Russell Brendon Hicks and Cameron Jeffrey Hicks [2001] QLRT 9 (21 February 2001) PARTIES: Ronald Leslie Deeley Applicant - and - Russell Brendon Hicks and Cameron Jeffrey Hicks Respondents FILE NO/S: LXX40004/2000 PROCEEDING: Objection on ground of privilege to tendering of documents at hearing. DELIVERED ON: 21 February 2001 DELIVERED AT: Emerald HEARING DATE: 21 February 2001 PRESIDING MEMBER: Smith DP ORDER/S: 1. Allow the claim for privilege with respect to the document that is referred to as document number 2 for identification purposes, but not allow the claim for privilege with respect to document number 1, but to limit the use that may be made of document number 1 at the hearing of this matter. (at [20]) CATCHWORDS: TENDERING DOCUMENTS – PRIVILEGE – MEDIATION – PURPOSE OF DOCUMENT Land and Resources Tribunal Act 1999, ss. 74, 75 Uniform Civil Procedures Rules, rr. 212, 213, 214 COUNSEL: N/A SOLICITORS: Mr Deeley represented himself Mr Houen (agent) appeared for the Respondents Mr and Mrs Hicks -- 1 of 5 -- EXTEMPORE REASONS FOR JUDGMENT [1] SMITH DP: During the course of evidence-in-chief by Mr Ronald Deeley representing himself during a hearing to determine compensation payable with respect to a mining lease application by Mr Deeley, Mr Deeley sought to tender two documents. [2] The document referred to as document 1 is a document which, it is common ground between the parties, came into existence at or about 3 October 2000 in response to a request by Mr Deeley made to Mr and Mrs Hicks and that document was provided to Mr Deeley in the precincts of the Emerald Courthouse at the time of the hearing of a directions hearing in this matter on 4 October 2000. [3] That document subsequently became a document used by the parties during the course of a mediation conducted by Deputy President Kingham of this Tribunal as a result of orders that I made on Wednesday, 4 October 2000, sending the matter to mediation. The mediation meeting in this matter took place on 24 October 2000. [4] Document number 2 is a document which is common ground between the parties came into existence during the conduct of the mediation and I am advised by Mr Houen representing Mr and Mrs Hicks is a document that contains handwritten notations by Mrs Hicks as well as the mediator setting out formulation of figures, et cetera, relating to compensation in this matter. [5] As mentioned previously Mr Deeley seeks to tender both documents although he does concede with regard to document number 2 that it was created during the period of mediation and does bear the mediator’s handwriting on the document. [6] Mr Houen objects to the production of both documents on the basis of privilege. In support of his claim for privilege Mr Houen has referred to section 74 and section 75 of the Land and Resources Tribunal Act 1999. -- 2 of 5 -- [7] In particular Mr Houen has referred to section 74(3) of the Land and Resources Tribunal Act which is in the following terms: “A document produced, at or used for, a mediation has the same protection during the mediation it would have if produced before the Supreme Court.” Mr Houen is unable to further assist the Tribunal on the nature of protection that the documents 1 and 2 would receive under that section were the matter before the Supreme Court. [8] Mr Houen also relies upon section 75(1) which is in the following terms: “Evidence of anything done or said, or an admission made, at a mediation about the matter is admissible in a proceeding before the tribunal or elsewhere only if all mediation participants agree.” [9] It is clearly the case that section 75 applies, in my view, to document number 2 as it was brought into existence purely for the mediation, as a working document, as I understand it, of the mediation, and bears the mediator’s notations on the document as well as that of Mrs Hicks. [10] I therefore rule with respect to document number 2 that that document is a privileged document relating to the mediation and as such cannot be used in the hearing of this matter. [11] At this point I should place on record that I have not viewed either document number 1 nor document number 2 at this point in ruling on admissibility although I do believe I would be entitled if I so chose to view those documents, however I do not believe it is necessary for me to view those documents for the purpose of making my rulings as sufficient details relating to their admissibility have been provided by both parties by agreement in submissions. [12] I also wish to make it clear that I have not been provided with affidavit evidence from either of the parties relating to the issues of admissibility in this matter but am relying upon the consensus reached by both Mr Houen and Mr Deeley in their submissions that they have made to me and the common ground that they have reached and I thank them for the common ground in that regard. -- 3 of 5 -- [13] As regards document number 1, the position seems somewhat more complex. Mr Houen has submitted that the document came into existence at least in part in contemplation of mediation. In that regard the position is similar somewhat to a document that may be prepared by a party at the time of an incident occurring when that party fears that the incident they’re referring to may become one of legal proceedings. I think, for instance, of a motor vehicle accident that a party may be involved in and documentation is prepared for insurance and other related matters but a party may also specifically create documentation in the fear or expectation that what they are involved in will result in legal proceedings. [14] In the example that I have just given there are a myriad of authorities, although I am unable to refer to them at the moment as we are sitting in a remote location, in which the Courts have held that privilege would exist with respect to any documentation that was brought into existence in anticipation of contemplated litigation so the statement I have referred to in that example would be privileged, but the documents that were brought into existence as a normal part of a process in that circumstance would not be subject to a privilege claim. [15] I also note the provisions of Rule 213 and 214 and 212 of the Uniform Civil Procedure Rules of Queensland. Whilst these rules relate specifically to the production of documents at an inspection stage in discovery by an affidavit of documents, there is an analogy that can be drawn to the issues of privilege in this matter. [16] In the circumstances of this case and applying the general principle as to why did the document come into existence, it is my view that the document in this case came into existence for two purposes. It came into existence for the purpose of an attempt to settle the issue of compensation with Mr Deeley during the process of the action that is currently being heard and the hearing of this matter, and also in contemplation that the matter would go to mediation. I understand that the document was not marked “privileged” or the like. [17] It is therefore my decision that the document number 1 may be tendered by Mr Deeley at this hearing as a document that doesn’t attach privilege of the pure -- 4 of 5 -- document itself, but I caution Mr Deeley that any reference to any matters or other elements that relate to that document from the mediation process must not be referred to by him during his evidence, or if it is Mr Houen should make an immediate claim for privilege relating to that matter, which I will deal with and I will discount any evidence that is given by any party relating to the manner in which that document was used during the mediation process. [18] That is not to say that the party is not free to speak and to give evidence relating to the document itself from a pure document aspect, nor to give evidence relating to valuations, et cetera, which I’m sure will form a significant part of this action, but I do wish it to be placed on record that my ruling allowing the document to be placed into evidence certainly does not, in my view, allow any use of that document that has a nexus with the mediation process to be placed before me. [19] I have dictated these rather lengthy reasons at this point due to the importance of the matter and to make it clear and the reasons that I have given will form part of a formal judgment which I will complete once the transcript is made available. [20] So my orders then with respect to the claims made by Mr Houen will be to allow the claim for privilege with respect to the document that is referred to as document number 2 for identification purposes, but not allow the claim for privilege with respect to document 1, but to limit the use that may be made of document number 1 at the hearing of this matter. -- 5 of 5 --