In its notice of motion filed on 7 September 2017, Ford sought numerous orders, including summary dismissal, advance ruling of inadmissibility and security for costs. Relevantly, Ford sought orders that evidence of alleged communications made between the parties in the course of a mediation and settlement discussions, in connection with an attempt to negotiate a settlement:
- is subject to privilege pursuant to s 131 of the Evidence Act
- is subject to confidentiality pursuant to the terms of the mediation agreement
The disputed evidence Tallevine filed three affidavits of Mr Creak in which the representations are described, at least in part. Harrison J’s decision recites some of the evidence from Mr Creak’s affidavits.1 It includes:
52. During the 8 September 2015 mediation conference held in Melbourne, I was present during conversations in words the following effect: I said: Any deal must include a guarantee of supply of a new Ford motor vehicles and I want a written assurance to that effect. Ford representative said: Yes, we will consider this requirement.
55. … David Jefferies said: Of course Tallevine is entitled to purchase cars from the existing Ford dealer network and should there be a satisfactory purchaser we would welcome representation back at Thornleigh.
Harrison J noted that it was extremely regrettable that not all of Tallevine’s evidence had been served on Ford. He further noted Tallevine’s curious way of reserving its position in relation to further evidence.2