Archonstruct v Donaldsonwalsh Law Firm - [2014] SADC 17

District Court of South Australia
(Civil)
ARCHONSTRUCT v DONALDSONWALSH LAW FIRM
[2014] SADC 17
Ruling of His Honour Judge Slattery (ex tempore)
31 January 2014
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT AND LOCAL COURTS PROCEDURE UNDER FORMER LOCAL COURT RULES - PRACTICE - PROCEDURE BEFORE TRIAL - OTHER MATTERS
Interlocutory application by plaintiff seeking orders that the parties to both proceedings (1690 of 2009 and 28 of 2014) engage in mediation on a date to be fixed - proceedings in both actions of longstanding duration and high complexity - proceedings in both actions to traverse a broad canvas of facts and circumstances - substantial costs to be incurred by all parties prior to the commencement of the trial - defendants to action no. 28 of 2014 not opposed to engaging in mediation - defendants to action no. 1690 of 2009 opposed to engaging in mediation due to cost of mediation.
Held:
Application adjourned to allow parties in both actions to agree to a timetable of how the actions will progress. His Honour indicates the following:
1. Having regard to the nature of the disputes between each of the parties in the two actions, the complexity arising out of them because of the extended nature of the history of each of the proceedings, the issue of costs and other complexities that naturally arise out of the actions the application of the plaintiff in both actions to order the appointment a mediator under the District Court Act is preferable.
2. Parties to both proceedings to produce a set of minutes with orders for the appointment by the Court of a particular mediator to conduct the mediation in early May 2013.
3. Both proceedings (1690 of 2009 and 28 of 2014) be combined into one action number and heading of proceedings so that documents filed in the proceedings will be the same.
District Court Act s.32, referred to.

ARCHONSTRUCT v DONALDSONWALSH LAW FIRM
[2014] SADC 17
JUDGE SLATTERY

By interlocutory application supported by the fourth affidavit of Nadia Karina Blake sworn 30 January 2014 in action No.1690/2009 (this action) dated 30 January 2014 the plaintiff, Archonstruct Pty Ltd, seeks orders that the parties to these proceedings as well as the parties to action No.28/2014, namely Archonstruct Pty Ltd and the firm of solicitors Donaldson Walsh, engage in mediation on a date to be fixed. A range of dates has been suggested. The date of that mediation must occur at a convenient time prior to the date set for hearing of the trial of this action on 25 August 2014.
The background to the application is to be seen within my judgment in this action dated 21 January 2014 ([2014] SADC 5). I refer to and will not repeat the factual and other matters set out in that judgment. This action and action no. 28 of 2014 are now to be heard together. The proceedings in this action are of longstanding duration and the matters to be canvassed in the proceedings between the plaintiff and the firm of solicitors in action No.28/2014 will also re-canvass issues and events over a very long period of time.
In my view it is quite predictable that both of the proceedings will traverse a broad canvas of facts and circumstances, they will be expensive as all proceedings in the modern era are however, because of multiple parties, they will also be complex. This will add to the length of the proceedings and compound the expense of them. In my view there are substantial costs to be incurred between now and 25 August 2014 for all parties in order for those parties to prepare for the commencement of the trial in this action.
There has been no mediation in either of these actions and I am informed by Mr Iles, counsel for Donaldson Walsh, that Donaldson Walsh does not oppose an order for mediation under s.32 of the District Court Act in action no. 28 of 2014.
Dr Gray for the plaintiff in both actions submitted that having regard to the nature of the disputes between each of the parties in the two actions, the complexity arising out of them because of the extended nature of the history of each of the proceedings, the issue of costs and the other complexities that naturally arise out of the actions, this is an appropriate case for an order under s.32 District Court Act[1] to refer each of the actions and the issues arising in each action for mediation by a mediator.
[1] Section 32—Mediation and conciliation
Mr Robertson SC for the defendants, Moffa and Gagliardi, submits that his instructions are that the defendants in this action do not consent to orders of the Court that a mediation being held. The principal ground of opposition raised was in relation to the costs of the mediation which Mr Robertson SC said was assessed at $10,000 for these defendants. No affidavit materials have been filed in support of that estimate but I will take that estimate at face value. These were no submissions from the bar table that this estimate was unreasonable.
Having regard to the other matters that I have already identified in these reasons and the matters that are set out in detail in my ruling of 21 January 2014, I am not satisfied that an assessment of costs of the mediation as it affects the defendants to these proceedings is an appropriate basis to resist the order sought by the plaintiff and agreed to by the firm of solicitors. And I am satisfied that the matter of costs, standing alone, would not lead me to exercise my discretion in any different way. This is because that submission is one of many matters that I am required to take into account in exercising my discretion. In my view, that consideration is significantly outweighed by the benefit that all of the parties may obtain from a mediation, the least of which may be a better understanding of the case of each party ranging through to a potential settlement then or later, and all of the associated savings of costs and perhaps the greatest benefit – the avoidance of the physical exertion of a trial and the consequential toll upon the parties. In these circumstances I am prepared to make an order that the issues in this action be referred for mediation by a mediator.
I refer to the requirements of sub-s32(1)[2] of the District Court Act. That subsection requires that upon a favourable exercise of my discretion, I may appoint a mediator and refer the action for mediation by the mediator. The mediator so appointed has the benefits and privileges as described in sub-s32(2) of the District Court Act. In the ordinary course it would be appropriate that I now appoint a mediator and refer the action for mediation.
[2] 32—Mediation and conciliation
(1) Subject to and in accordance with the rules, the Court constituted of a Judge or Master (whether or not sitting with assessors) may, with or without the consent of the parties, or the Registrar may, with the consent of the parties, appoint a mediator and refer an action or any issues arising in an action for mediation by the mediator.
(2) A mediator appointed under this section has the privileges and immunities of a Judge and such of the powers of the Court as the Court may delegate.
The fourth affidavit of Ms Blake sworn 30 January 2014 (FDN49) in this action informs that Mr Walsh QC may be available to conduct the mediation on 17 March 2014. The significance of that date is that it was the date set for the trial of this action that all parties now accept cannot now be maintained following the delivery of my judgment in this matter on 21 January 2014. I have not yet made final ancillary and consequential orders in relation to and following that judgment.
The important feature here is that following my judgment of 21 January 2014, the proceedings between the plaintiff and the firm of solicitors (action no. 28 of 2014) will be heard and determined at the same time as the proceedings between the plaintiff and the defendants Moffa and Gagliardi (action no. 1690 of 2009). However, it will take some time for those representing and advising the firm of solicitors to obtain proper instructions in order to be in a position to file responding pleadings and to embark upon disclosure and inspection. Before any meaningful mediation can occur it will be necessary for all of the parties in the solicitors’ proceedings to have taken those steps and completed these procedures. Mr Iles for the firm of solicitors in action no 28 of 2014 submitted that on his best estimate the appropriate time for the hearing of this mediation will be in late April or early May 2014. The plaintiff did not argue against that time estimation. In my opinion, it is an apparently reasonable estimation. It may change if it is contemplated that other parties are sought to be joined to the solicitors’ action.
In the circumstances, I am not in a position to make the orders contemplated under sub-s32(1) of the District Court Act because of the complications of the involvement of the solicitors’ proceedings and the need to (acceptably) bring those proceedings to the same level of preparedness as this action. All that is necessary for me to do here is to identify my intention to exercise my discretion in favour of the application of the plaintiff in both actions to appoint a mediator under the District Court Act. I will do so as part of a suite of orders that I intend to make for the ongoing management of both proceedings. I intend that the parties agree and bring in to Court a set of minutes with orders for the ongoing management of both actions including an order for the appointment by the Court of a particular mediator to conduct the mediation on a specific day in early May 2014. I intend to adjourn this matter for a sufficient time to allow that to take place. Upon resumption I will make orders as they are agreed or alternatively I will resolve any impasse between the parties by orders that I will impose upon them.
One of the orders that I intend to make is for the combination of the action numbers and heading of the proceedings so that the documents filed in the proceedings will carry headings to be set out in the following way:-
“IN THE DISTRICT COURT OF SOUTH AUSTRALIA
No 28 of 2014 BETWEEN
ARCHONSTRUCT PTY LTD (ACN 007 903 899)
Plaintiff
and
DONALDSON WALSH
Defendant
No 1690 of 2009 BETWEEN
ARCHONSTRUCT PTY LTD (ACN 007 903 899)
Plaintiff
and
MICHELLE MOFFA
First Defendant
and
GIOVANNI GAGLIARDI
Second Defendant”

(1) Subject to and in accordance with the rules, the Court constituted of a Judge or Master (whether or not sitting with assessors) may, with or without the consent of the parties, or the Registrar may, with the consent of the parties, appoint a mediator and refer an action or any issues arising in an action for mediation by the mediator.
(2) A mediator appointed under this section has the privileges and immunities of a Judge and such of the powers of the Court as the Court may delegate.
(2a)         A mediator appointed under this section must not, except as required or authorised to do so by law, disclose to another person any information obtained in the course or for the purposes of the mediation.
(2b)         The Court may itself endeavour to achieve a negotiated settlement of an action or resolution of any issues arising in an action.
(2c)         A Judge or Master who attempts to settle an action or to resolve any issues arising in an action is not disqualified from taking further part in those proceedings but will be so disqualified if he or she is appointed as a mediator in relation to those proceedings.
(3) Evidence of anything said or done in an attempt to settle an action by mediation under this section is not subsequently admissible in the proceedings or in related proceedings.
(5)Where a case is settled under this section, the terms of the settlement may be embodied in a judgment.