Australia: Privileged documents prepared for the purpose of settlement negotiations: when can they be disclosed in subsequent proceedings?

In brief - NSW Supreme Court allows disclosure of privileged documents prepared for the purpose of settlement negotiations

The recent decision in Martin Patrick Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386 to allow disclosure of privileged documents prepared for the purpose of settlement negotiations in subsequent proceedings illustrates a situation where the Court did not find a sufficient connection between the subject matter of the original dispute and the subsequent dispute so as to warrant the preservation of the privilege.

Privilege extends where a sufficient connection between the original and subsequent disputes exists

As a matter of policy, the law excludes from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation (also known as "without prejudice privilege"). The purpose of this is to enable parties engaged in an attempt to settle litigation to communicate freely with each other and without the prejudice that might be caused to them if the negotiations fail and their communication is later used in evidence against them.

As Lord Griffiths stated in Rush & Tompkins Ltd v Greater London Council [1988] UKHL 7, to abolish "without prejudice privilege" would "place a serious fetter on negotiations between other parties if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant" (1989 AC 1280, at [1305]).

"Without prejudice" privilege extends to prevent disclosure of communications to third parties in a subsequent dispute, provided that there is a sufficient connection between the subject matter of the original dispute and the subsequent dispute. This can include cases where:

  • the litigation has a connection with the same subject matter as the negotiations
  • the negotiations and the litigation arise out of the same subject matter and the negotiations and settlement are of potential relevance to subsequent litigation
  • the subject matter of the settlement discussions is substantially the same as the subject matter of the legal proceedings
  • the subject matter of the negotiation does not differ from that of the proceedings

Ultraceuticals' subpoena produces documents relating to earlier dispute

In the course of the subject proceedings, a defendant, Ultraceuticals Pty Limited, issued a subpoena to Star Car Wash Café Holdings Pty Limited (Star) for the purpose of obtaining documents said to be relevant to Ultraceutical's cross-claim. The documents the subject of the subpoena included those that were prepared for the purpose of settlement negotiations of an earlier dispute involving Mr Dowling (the plaintiff and cross-defendant), Ofer (a company associated with Mr Dowling) and Star. That dispute related to alleged irregularities in loan accounts maintained between Mr Dowling and Star.

Mr Dowling sought to avoid production of the documents on the grounds that they were the subject of without prejudice privilege.

Justice Hammerschlag found that the subject matter of the dispute between Mr Dowling and Ultraceuticals was sufficiently different to the dispute between Star, Ofer and Mr Dowling so as to vitiate the operation of any without prejudice privilege that might otherwise have inhered in the documents. Ultraceuticals was a third party, involved in different litigation – litigation which did not have a sufficient connection with the subject matter of the original settlement negotiations.

Does the party resisting disclosure have a legitimate expectation of privilege?

In reaching this conclusion, his Honour stated that the Court, when confronted with such a situation, must assess (amongst other things) whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute.

His Honour relevantly stated:

Dowling and Ofer could have had no legitimate expectation of protection from disclosure of material which becomes relevant to the second dispute, only because it is alleged that it falsifies statements separately made by them in a different context. Extending protection in such circumstances would encourage dishonesty, not candour, in settlement discussions.

Judge finds that documents were sought to establish dispute's objective facts

Additionally, Justice Hammerschlag referred to the High Court decision in Field v Commissioner for Railways (NSW) [1957] HCA 92 in which the High Court observed that without prejudice privilege is not concerned with objective facts that may be ascertained during the course of negotiations. Instead, it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission.

In this regard, his Honour found that the documents were sought to establish the objective facts of the Star dispute and not the correctness of either parties' stance. Therefore it can be inferred that his Honour did not consider the documents to be the subject of without prejudice privilege even in the context of the earlier dispute.

Important points about without prejudice communications and settlement negotiations

  • The onus of establishing without prejudice privilege rests on the party claiming it.
  • Without prejudice prevents admission into evidence of settlement negotiations between parties when litigation between them is in contemplation.
  • The policy underlying without prejudice privilege is to enable free communication without the embarrassment that might be imposed if the communication was subsequently put into evidence.

Without prejudice privilege extends to cover disclosure to third parties in a subsequent dispute, provided there is sufficient connection between the subject matter of the disputes.

In such circumstances, the Court must assess not only the nature of the connection of the disputes to determine whether the criteria for maintaining the privilege will be served by protecting disclosure, but also whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute.

Andrew Murray
Commercial litigation
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.