ADR: referral to mediation despite costs, trial certificate & objections

Look Design and Development Pty Ltd v Sweeney & Anor [2015] QDC 36

A useful reminder of the Court’s discretion under Part 6 of the Civil Proceedings Act 2011 (CPA) and r 5 of the Uniform Civil Procedure Rules 1999 (UCPR) – despite the claim being close to trial, objections to a range of matters, including whether it was worthwhile and the additional costs involved.

Long SC, DCJ

[15] For the defendants, reference is made to authorities where consideration has been given to the exercise of the discretion to order such a referral, even in the face of opposition of a party or parties.13 As is discussed in those cases, there is a broad and unprescribed discretion to be exercised, and to adopt the words of Robin QC DCJ, in McClure v Australian Independent Wholesalers Pty Ltd: “Each case must depend on its circumstances and, ultimately, on the way in which each judge exercises his or her discretion. Therefore no case can be seen as establishing any general rule.”14 It may be appropriate to regard ADR processes, including mediation, as an important, if not integral, part of the Court’s adjudicative processes and to recognise that the involvement of an independent third party, may bring a different perspective into a process that is otherwise controlled by the parties and provides an opportunity of a negotiated settlement, rather than one imposed by the Court. However, the cases referred to, including those cited by the plaintiffs as instances where mediation was not ordered in the absence of the consent of all parties,15 are essentially examples of the separate exercise of discretion according to the particular circumstances of different cases.
[16] Clearly the objects of Part 6 of the CPA, in making provision for ADR processes and as set out in s 37, provide some important context, as does the expression of the philosophy and purpose of the Uniform Civil Procedure Rules, as set out in UCPR 5. Of course, it is not to be assumed that the objectives of facilitating the just and expeditious resolution of the real issues in proceedings and minimising expense16 and avoiding undue delay and expense17 or improving access to justice and reducing cost and delay,18 in litigation is always to be achieved or even facilitated by an attempt at an ADR process. In particular and where there is no or little apparent prospect of any negotiated settlement in a matter, such objectives may be best achieved by bringing a matter to trial as early as possible.
[17] In this matter the plaintiff’s resistance to mediation is based on contentions as to the absence of significant prospect of settlement at a mediation and the prospect therefore of additional and unproductive costs for the parties, when a relatively short trial could be held in the near future.
[18] Further, it is contended that the fact that this application comes relatively late (in the sense that the proceedings are at a point, when the matter could be listed for trial and substantial costs have already been incurred, in respect of the steps taken to get to that point), is a circumstance against referring the matter to mediation. In my view, that is a relevant consideration but it may not necessarily and in isolation, point against such a referral. It may be that, as the circumstances of this case indicate, the prospect of a meaningful mediation and hence the prospect of a properly considered outcome, is enhanced by the steps that have occurred in informing each party, not only of the case to be made by each, but also the disclosable material relevant to the issues potentially in contention.
[19] It can be recognized that the plaintiff’s stated objection to the referral is not necessarily a positive indicator of the prospects of a successful mediation. However and as has been previously observed: “No party can be forced to reach agreement but they can be directed to participate reasonably and genuinely. More importantly, a skilled mediator can promote meaningful involvement.”Of course, different considerations may arise if the circumstances disclosed any convincing and reasoned opposition to the prospect of settlement before trial. It is accordingly of some importance to both understand and examine the basis or reasons for the plaintiff’s objection to the referral to mediation.

Of course, different considerations may arise if the circumstances disclosed any convincing and reasoned opposition to the prospect of settlement before trial. It is accordingly of some importance to both understand and examine the basis or reasons for the plaintiff’s objection to the referral to mediation.

[28] Considerations as to the prospect and apparent desirability of a negotiated settlement, particularly arise where, as here, the likely damages to be awarded at trial are not large, particularly in comparison to the potential costs of the trial process, to both parties.
[29] If a breach of copyright is established, damages may be awarded and where it is proper to do so, additional damages may also be awarded under s 115(4) of the Copyright Act. As noted in the Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors,23 such damages are analogous to aggravated or exemplary damages and would require specific attention to the matters specified in s 115(4)(b) of that Act. As further noted in that decision, damages for breach of copyright “are commonly assessed at a fair fee for the use of the plans the subject of the infringement”.24 Although, and in that case, it was also recognised that damages were awarded on the basis of compensation of the plaintiff for the loss of the commercial opportunity occasioned by the infringement,25 it was noted that “[t]his depends on whether the commercial opportunity really has been lost as a result of the defendants’ actions” and that “commonly in cases of this nature that is not the case”.26
[30] Accordingly, and in these circumstances and particularly where it is apparent that the prospective damages that may be recovered, at trial, may well be outweighed by the costs of doing so and where and despite the stated opposition of the plaintiff to mediation, it has otherwise proposed settlement negotiations and it is not to be concluded that there is no or even little prospect of any successful outcome of it, there should be a referral to mediation.

 

13 Such as Elford v Nolan & Anor [2014] QDC 257 and Simic v LTH Investments (Qld) Pty Ltd [2013]
QDC 240; cf: Wade v Gargett & Anor [2010] QDC 27.
14 [2006] QDC 281, at p 2.
15 Trelour v JH McDonald Pty Ltd [2001] QDC 53 and Wade v Gargett & Anor [2010] QDC 27.
16  UCPR(5)(1).
17 UCPR(5)(2).
18 s 37(b) CPA.

23 [2005] QDC 57 at [92] and [103].
24 Ibid at [92] and citing: New England Country Homes Pty Ltd v Moore (1998) 82 FCR 500, at 506;
Macgregor on Damages (17th Ed) p.1479.
25 See Bailey v Namol Pty Ltd (1994) 30 IPR 147.

26 Vanwake at [92] and fn 73: citing e.g.: Carlisle Country Homes v Brown (1999) 22 Qld Lawyer Reps
1, at p 12.

 

David Cormack – Brisbane Barrister & Mediator

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