Abela v Chevalier College

[2024] NSWSC 50

Supreme Court

New South Wales

Medium Neutral Citation:

Abela v Chevalier College [2024] NSWSC 50

Hearing dates:

2 February 2024

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Common Law

Before:

Griffiths AJ

Decision:

(1) Under s 26 of the Civil Procedure Act 2005 (NSW), the matter be referred to mediation. The half-day mediation will take place before a Registrar of the Court commencing 2pm on 20 March 2024.

(2) On or before 16 February 2024 the plaintiff provide to the mediator and serve on the defendant a short statement not exceeding 2 pages of the plaintiff’s position relating to the debt for unpaid school fees which is in dispute and the subject of the default judgments granted by the Local Court on 27 November 2020.

(3) On or before 1 March 2024 the defendant provide to the mediator and serve on the plaintiff a similar statement noted in (2) relating to the position regarding the disputed debt.

(4) The hearing listed for 5 February 2024 is vacated.

(5) The notice of motion filed on 29 January 2024 is dismissed, with no order made as to costs.

(6) The parties have leave to contact the Associate to Griffiths AJ regarding the outcome of the mediation of 20 March 2024.

(7) The matter to return for directions before Griffiths AJ at 9.30am on 22 March 2024 if the mediation is unsuccessful.

(8) If the mediation is successful, the parties have leave to provide short minutes of order by consent, and final orders will be made in Chambers.

Catchwords:

CIVIL PROCEDURE – Adjournment application – proposals to appoint tutor and retain legal representation – unnecessary to decide

CIVIL PROCEDURE – Alternate dispute resolution – Referral to mediation

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 26

Category:

Procedural rulings

Parties:

Michael Joseph Abela (Plaintiff)
Chevalier College (Defendant)

Representation:

Counsel:
M J Abela (Litigant in Person)
P A Horobin (Defendant)

Solicitors:
Family Focus Legal (Defendant)

File Number(s):

2023/212096

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By notice of motion filed on 29 January 2024, the plaintiff sought various relief, primarily the vacation of the hearing in the substantive matter, which is currently scheduled to take place next Monday, 5 February. The reasons stated in the notice of motion, and supported by several affidavits which have been read by the plaintiff, is that he lacks legal capacity, wishes to have a tutor appointed, and also seeks to retain legal representation. For reasons which I will shortly develop, it is unnecessary to determine these issues.

2. In the course of what has been, if I may say so, a helpful and fruitful discussion with Mr Abela, who appeared and represented himself this morning, and also with Mr Horobin of counsel, who appeared on behalf of Chevalier College, it is not necessary to proceed with the motion because the Court will order that the matter go to a mediation under s 26 of the Civil Procedure Act 2005 (NSW). The parties have been informed that a registrar would be available to be involved in a half-day mediation, starting at 2pm on 20 March 2024.

3. To assist in the efficient conduct of that mediation, I will order the plaintiff to provide to the mediator and serve on the defendant a short statement not exceeding two pages of the plaintiff’s position regarding the disputed debt which is the subject of the default judgments granted by the Local Court. The default judgments were entered by the registrar of the Local Court on 27 November 2020. Mr Abela brought proceedings in the Local Court some years later seeking to have the default judgments set aside. The default judgments, which were obtained in the absence of any defence being entered by the plaintiff, were in the amounts of $49,651.23 for school fees and a further amount in the range of about $80,000, which I understand also to relate to unpaid school fees. I should add that the parties do not agree the amount of the unpaid fees, and that may be a matter that needs to be the subject of mediation.

4. Returning to where I was a moment ago, the plaintiff should file a statement of its position for the purposes of the mediation relating to the unpaid school fees by 16 February 2024. The defendant should then provide to the mediator and to Mr Abela a similar statement, not exceeding two pages, setting out its position regarding the unpaid fees. The matter is referred to mediation on 20 March at 2pm before the registrar conducting mediations that day.

5. I will order that the matter return before me, if necessary, at 9.30am on 22 March 2024 in the event that the mediation is unsuccessful. In the event that the mediation is successful, and may I add that it is very much in everyone’s interests that a mutual agreement be arrived at - I will grant leave to the parties to contact my associate by email if it transpires that the matter need not be listed on the 22 March at 9.30.

6. I will formally vacate the hearing date of 5 February 2024, leaving open the fact that a fresh hearing date will be allocated, and fairly quickly, having regard to the delay in this matter, in the event that the mediation is unsuccessful. I will also order that the notice of motion filed on 29 January 2024 be dismissed with no order as to costs.

7. Finally, I record that I see no reason why Mr Abela should not have the assistance of some person to support him in the mediation process to which I have referred.

**********