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- Section 97 The tendency rule
- Section 131 Exclusion of evidence of settlement negotiations
- Section 140 Civil proceedings–standard of proof
Updated 9 November 2016
Section 97 The tendency rule
In Donohue v Tasmania  TASCCA 17, one member of the Tasmanian Court of Criminal Appeal (Brett J) considered that evidence that the appellant had made other approaches to persons to murder his wife “was directly relevant to establish the existence and nature of his motive to commit the alleged crime” (that is, incite another person to murder her) and was not tendency evidence. The other members of the court did not adopt the same reasoning and it may be doubted whether such reasoning can be properly distinguished from tendency reasoning.
Section 131 Exclusion of evidence of settlement negotiations
- Internal analyses by a party may fall within the scope of the privilege: Volunteer Fire Brigades Vic Inc v Country Fire Authority (No 3)  VSC 621 at –.
- It has been held that “a communication that is made between persons in dispute” is capable of referring to a communication between participants in a dispute who are on the same side of a qualifying dispute: Humphreys v Humphreys  VSC 637 at . It was observed that “[e]xcluding evidence of communications made between party A and party B, each of whom is ‘in dispute’ with party C at a mediation” was consistent with the rationale behind the privilege.
- It has been held by the Victorian Court of Appeal that the “dispute” referred to in s 131(2)(f) (“the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue”) must be the same “dispute” referred to in s 131(1)(a) (where the communication attracts privilege because it was made “in connection with an attempt to negotiate a settlement of the dispute”): McCarthy v Camil Holdings Pty Ltd  VSCA 235 at . So, where there are proceedings to enforce, or as to the making of, an agreement to settle a dispute, privilege will be lost in relation to a communication made in connection with an attempt to negotiate a settlement of that dispute. If the communication was made in connection with an attempt to negotiate a settlement of a different dispute (so that it is privileged pursuant to s 131(1)(a)), this exception will not apply.
- In Humphreys v Humphreys  VSC 637, it was held (relying on common law authority) that a statement made during a mediation fell within this exception in s 131(2)(i) (“making the communication, or preparing the document, affects a right of a person”) because the person, to whom it was made, made claims that “include negligent misrepresentation and promissory estoppels”: Ginnane J at –.
Section 140 Civil proceedings–standard of proof
A failure of a party to adduce particular evidence, where such evidence would reasonably have been expected, will impact on the assessment of the weight to be given to the evidence that was adduced by the party but if a court is satisfied on that evidence that a particular inference favourable to the party in question should be drawn, then the principle does not mandate that an adverse inference should instead be drawn: RHG Mortgage Corporation Ltd v Ianni  NSWCA 270 at .
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