What does “without prejudice” mean?
If you are going through family law proceedings, it’s likely you would have seen some correspondence emblazoned with the words, “without prejudice”. This phrase relates to genuine attempts to negotiate a dispute and the legal privilege attached to that negotiation. Once a common law protection, the Evidence Act (Cth) now formalises the “without prejudice” privilege.
According to Section 131 of the Evidence Act 1995 (Cth), any disclosures or offers made during negotiation on a “without prejudice” basis:
The purpose of “without prejudice” negotiation is to encourage open communication between parties in a dispute in order to help them reach settlement outside of the Family Court system.
“Without prejudice” negotiation applies to all stages of proceedings. Whether you’re exchanging text messages in the early stages of separation, or on the Family Court steps at trial – this privilege can be invoked.
However, despite its common use in litigation, this privilege only applies in particular circumstances.
When does “without prejudice” apply?
Section 131(1) of the Evidence Act 1995 (Cth) states that this protection covers the following types of communications in Court:
- a communication that is made between parties in a dispute, or between parties in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
- a document (whether delivered or not) prepared for the purpose of attempting to negotiate a settlement of the dispute.
In other words, this protection only applies to genuine attempts to negotiate a settlement. For example, family law mediation is a common forum for parties to genuinely attempt to negotiate settlement. As a result, parties generally cannot present the substance of these mediations as evidence in any subsequent affidavits or litigation.
Note that the words, “without prejudice”, can apply to written and oral communications. Specifying that communication is “without prejudice” is merely a helpful way to identify the intention of any particular communication.
When does “without prejudice” not apply?
Section 131(2) of the Evidence Act 1995 (Cth) identifies exceptions to the “without prejudice” privilege. Exceptional circumstances include where:
- parties have already consented to disclosure of such discussions – expressly or impliedly;
- current evidence before the court would be misleading without including it in proceedings;
- something indicates that it is not intended as a confidential communication;
- it could be relevant in determining a party’s liability for costs; or
- it was made for the purpose of committing fraud.
Therefore this protection does not apply just because it is written on the page. The Court will always look for the genuine intent of any disputed communication.