by Kerry Hogan-Ross
Introduction
In a summons filed in the NSW Supreme Court in March 2017, the plaintiff (Ford) alleged that the defendant (Tallevine) was in breach of the terms of a settlement deed and consent orders reached as a result of a mediation held in September 2015 in the course of resolving previous proceedings.

This interlocutory judgment deals with numerous issues, however, this case note focuses on Tallevine’s intention to rely on evidence of false representations (representations) it alleges were made by Ford during the mediation. Ford denies it made false representations. The decision considers the operation of the Evidence Act 1995 (Cth), specifically s 131 — Exclusion of evidence of settlement negotiations. It concludes that because Tallevine’s allegations call into question whether the agreement was in fact made, s 131(2)(f) meant that the protections offered in s 131(1) did not apply.
Background
Tallevine was a Ford dealer on a conditional basis from around November 2010 and from April 2011 pursuant to a standard Ford dealer agreement. In August 2013 Mr Creak, who is a director of Tallevine, and one of Tallevine’s employees were convicted of offences directly relating to his conduct of the dealership. The offences included tampering with odometers. Ford took steps to terminate the dealer agreement.

Ford commenced proceedings in the Victorian County Court in May 2014, alleging that Tallevine was in breach of the dealer agreement. A mediation was held on 21 May 2015. It was unsuccessful.

A further mediation was held on 8 and 10 September 2015. The mediation agreement signed by the parties on 8 September 2017 (mediation agreement) contained standard clauses relating to confidentiality and privilege. On 16 September 2015 Ford and Tallevine executed a settlement agreement (2015 settlement agreement) and Consent Orders […]