Austral Hotel (SA) Pty Ltd v Austral Properties Pty Ltd - [2019] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
AUSTRAL HOTEL (SA) PTY LTD v AUSTRAL PROPERTIES PTY LTD AND ORS
[2019] SADC 136
Reasons for the Order of His Honour Judge Slattery
9 September 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - ALTERNATIVE DISPUTE RESOLUTION - MEDIATION
On 14 August 2019, the court made orders with injunction to preserve the status quo in the action until an early trial on 2 December 2019. The parties were then represented by counsel and the defendant by senior counsel; they were to be the trial counsel. Some ancillary directions were made by the court and further orders are to be made following a mediation to be conducted by order of the court on 23 September 2019.
Prior to 2 September 2019, the defendant announced that it would attend the mediation through its representative, with its solicitor and that it would be assisted by a Mr Damian Lester. The appointed mediator expressed a very clear view that in the absence of the defendant’s counsel, the mediation would not be efficacious.
Where the court has made orders under s 32 District Court Act and 6DCCR 220 for a mediator to conduct a mediation in a commercial dispute, whether the court has the power and in the exercise of its discretion may order that a party be represented by counsel at the mediation.
Held:
1. The court has power under the District Court Act and the Rules of Court to make an order that a party be represented by counsel at a court ordered mediation where the appointed mediator has expressed a clear view that the mediation will not be efficacious in the absence of a party’s counsel.
2. Order that at the court ordered mediation, the defendant be represented by counsel including senior counsel.
Retail and Commercial Leases Act s 30; Landlord and Tenant Act 1936 Generally; District Court Act 1991 s 32; District Court (Civil) Rules r 116, r 117, r 220; Statutes Amendment (Mediation, Arbitration and Referral) Act 1996 s 7; Supreme Court Act 1935 s 65; District Court (Civil) Supplementary Rules 2014 r 207; 1987 Supreme Court Rules r 2, r 2.01, r 2.02, r 2.08, r 3.04(g), r 76.01, r 76.02, r 76.03; Practice Direction 55, referred to.
Addstead P/L (in liq) and Ors v Simmons and Ors (No 2) [2005] SASC 25; Baulderstone Hornibrook Engineering v Dare Sutton Clark & Ors [2000] SASC 159, discussed.

AUSTRAL HOTEL (SA) PTY LTD v AUSTRAL PROPERTIES PTY LTD AND ORS
[2019] SADC 136

The plaintiff alleges that it is the lessee of the whole of the land more commonly known as 205 Rundle Street, Adelaide, SA 5000, upon which it conducts the business of the “Austral Hotel”. The defendant, as lessor, is the registered proprietor of the land upon which the hotel is situate. The defendant gave a registered lease to the plaintiff dated 4 December 2008 for an initial term of 10 years at an annual rental and which prescribed a number of other terms and conditions. These relate to the painting of the premises, a right of renewal and in relation to fire, general and public liability insurance. The lease also contain a market rent review clause.
The plaintiff contends that it has sought approval from the Adelaide City Council and insofar as it was able, has complied with all of its obligations to paint the premises. Part of that process involved obtaining an expert report about heritage stone reconstruction on the facade of the Hotel.
The plaintiff contends that by letter of 30 April 2018 (and therefore, within the window provided under the lease), its solicitors gave notice to the defendant of the exercise of a right of renewal and that following a dispute between the parties, the plaintiff and the defendant have agreed to appoint a valuer to carry out a determination of the rent as an expert in accordance with the market rent review clause of the lease.
The plaintiff further contends that it has paid land tax in the amount of $272,422.34 whereas, under the operation of the relevant applicable legislation, it was not obligated to pay that land tax; it ceased to pay land tax on 8 May 2018. It alleges that it has overpaid legal fees and has paid all insurance premiums. The plaintiff seeks to recover the land tax overpaid on the basis that it was paid under a mistake of law, fact or fact and law, or alternatively, it is money to which the defendant was not entitled by reason of the operation of s 30 of the Retail and Commercial Leases Act.
The plaintiff contends that it is unable to comply with its obligations to finalise the painting of the premises in the absence of the certification by the Adelaide City Council that repair works to an outside plinth of the Hotel which it has carried out have been completed to the satisfaction of the Council. It seeks an order extending the time to comply with the obligation to paint, a declaration that as at 30 April 2018, the date of notices given to it by the defendant, it was not in breach of its obligation to paint the premises or of any of its obligations under the lease. It seeks a declaration that it has validly exercised its right of renewal, an order directing the defendant to grant the renewal of the lease for a further 5 year term and an order that the defendant repay to the plaintiff the sum of $272,422.34 overpaid on account of land tax. It also claims other ancillary orders in relation to claimed capital works, rental increases and overpaid legal fees and a declaration that the plaintiff is not in breach of the lease as alleged in a rent notice received by it on 27 June 2019 delivered by the defendant. It further seeks a declaration that it is not in breach of its insurance obligations under the lease.
The defendant denies the allegations of the plaintiff, contends that the plaintiff is in breach of the terms of the lease in that it has failed to properly pay the rent, to comply with the condition to paint the premises, to properly insure the premises, to pay legal fees as required, to pay for capital works and to pay rent as increased under the terms of the lease. As a result of the plaintiff allegedly being in breach of the terms of the lease, the defendant asserts the plaintiff did not observe the terms of the lease and was therefore not in a position to renew the lease. The defendant also counterclaims against two guarantors, David Gilbert and Hannah Michelle who are the first and second defendants to the third-party action.
The defendant purported to exercise its rights as landlord under the Landlord and Tenant Act 1936 to remove the plaintiff from the leased premises based upon purported breaches of lease committed by the plaintiff and most fundamentally, the failure to pay the full amount of the rent due.
The plaintiff commenced an application for orders with injunctions to restrain the defendant from purporting to exercise its alleged rights under the lease. Following a series of interlocutory hearings and by consent, a final order with injunction was made by the court on 14 August 2019 in the following terms:-
UPON the plaintiff undertaking to:
submit to such order (if any) as the court may consider to be just for the payment of compensation, to be assessed by the court or as it may direct, to any person (whether or not a party) affected by the operation of the interlocutory order or any continuation (with or without variation) of the order; and
pay the compensation referred to in (a) to the person or persons referred to in the order.
THE COURT ORDERS BY CONSENT that:
Until the final determination of this action at trial the defendant is restrained from taking any steps to terminate the registered lease dated 4 December 2008 with registered dealing number L11135247 (the Lease) for the premises located at 205 Rundle Street, Adelaide which are known as the Austral Hotel, or otherwise interfering with the occupation of the subject premises by the plaintiff in reliance upon either the notice to remedy breach relating to alleged failure to pay rent dated 27 June 2019 or the notice to remedy breach relating to alleged failure to pay insurance premiums dated 27 June 2019.
Costs of the plaintiff’s application of 10 July 2019 are certified fit for senior counsel.
Costs of the plaintiff’s application of 10 July 2019 are reserved to the trial judge.
Liberty to either party to apply on 24 hours notice.
The court has provided to the parties an early trial date of 2 December 2019 and up to 10 hearing days have been set aside. Some orders preparatory to trial had been made however the final directions in relation to the conduct of the trial have been delayed until 8 October 2019. The reason for the delay is that the parties mutually sought orders under s 32 of the District Court Act 1991 and District Court (Civil) Rules 220 for the appointment of a mediator for a mediation to be held prior to 8 October 2019.
Also on 14 August 2019, I gave some directions in relation to the trial and made an order for the appointment of a mediator. Those orders read as follows:-
1.   These proceedings proceed to an expedited trial.
2.   On or before 4.30pm on Friday 16 August 2019, the plaintiff file and deliver an amended statement of claim in the same terms as advised by the plaintiff to the defendant by email from its solicitors dated 12 August 2019.
3.   The defendant file an amended defence, if so advised, on or before Friday 23 August 2019.
4.   The plaintiff file an amended reply, if so advised, on or before Friday 30 August 2019.
5.   The parties shall make disclosure on or before Friday 13 September 2019.
6.   The parties shall complete inspection on or before Friday 20 September 2019.
7.   The parties shall exchange experts reports on or before Friday 25 October 2019.
8. Pursuant to s 32 of the District Court Act:-
a.   The parties are ordered to proceed to a mediation on or before 3 October 2019, the costs of which shall be borne equally by the parties; the mediator agreed by the parties is [the mediator].
b.   In the event that [the mediator] is not available to act as mediator and if, within 14 days of the date of this order, the parties are unable to agree who should be the mediator, the parties or either of them may urgently apply to the Court for an order for the appointment of a mediator from a list of available persons proposed separately by each of the parties.
9.   The matter be listed for a final directions hearing on Wednesday 16 October 2019 at 9am at which time directions as to the conduct of the trial will be made.
10.   Any application for non party disclosure is to be made returnable to the final directions hearing.
11.   The matter is listed for trial commencing on 2 December 2019 with five days set aside.
12.   Liberty to apply.
The order for the appointment of a mediator was made pursuant to s 32 of the District Court Act 1991 and DCCR 220. Sub-sections 32(1), (2a) and (2c) were inserted into that section of the Act as from 30 September 1996 by s 7 of the Statutes Amendment (Mediation, Arbitration and Referral) Act 1996 (no. 46); from that time, the section was in similar terms to s 65 of the Supreme Court Act 1935. Section 32 reads:-
32—Mediation and conciliation
(1) Subject to and in accordance with the rules, the Court constituted of a Judge, Master or Judicial Registrar (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, Master or Judicial Registrar 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.
6DCCR 220 reads as follows:-
220—Mediation
(1)     A Judge or Master may appoint a mediator in an action and refer the action or a particular issue arising in the action for mediation.
…
(2)     The mediator is to be a person determined by the Court (either with or without the consent of the parties).
(3)     A Judge or Master may be a mediator.
As this is a court ordered mediation, r 207 of the District Court (Civil) Supplementary Rules 2014 has application. It reads as follows:-
207—Mediation
(1)Unless the Court otherwise directs, this supplementary rule applies to mediations under section 32 of the District Court Act 1991.
(2)If the parties and the mediator do not reach agreement as to the mediator’s fees, the mediator may only charge fees for the work in relation to the mediation that do not exceed the fees in the “Supreme and District Courts’ Indicator on Counsel Fees”.
(3) The parties to the action are jointly and severally liable for payment of the mediator’s fees.
(4)The lawyers on the Court record for the parties are to use their best endeavours to ensure prompt payment of those fees.
(5)The parties are expected to participate appropriately in the mediation and to make genuine attempts to resolve the matters in issue.
(6)If the mediator considers that a party has not participated appropriately in the mediation or has not made genuine attempts to resolve the matters in issue, the mediator may provide a written report to the Court of the circumstances.
I refer in particular to the power of the mediator to make a report to the court under r 207(6) of the Supplementary Rules.
On the parties’ application, I was satisfied that in the exercise of my discretion the mediator was an appropriate person to conduct the mediation. At the time I made the orders, both parties were represented by counsel and solicitors. Mr Dal Cin appeared as counsel for the plaintiff and first and second defendants to the third-party action. Mr Livesey QC and Mr Thomas appeared as counsel for the defendant and plaintiff to the cross action and third-party action.
The mediator and the parties have now agreed upon 23 September 2019 as the date for the mediation. I was advised that Mr Thomas, the junior counsel to Mr Livesey QC may not be available on that date but that is not certain. The defendant has now announced that it will not ask its senior and junior counsel to attend the mediation and that it will attend with its solicitor Mr Allen Burtt and a person called Mr Damian Lester. I was told that Mr Damian Lester would appear as a support person for the relevant officer of the defendant. How it is that a person such as Mr Damian Lester can assist the defendant was not made clear but I will put that matter to one side. The defendant has made a deliberate choice not to retain senior and junior counsel to attend and give advice at the mediation.
I gave liberty to apply. Under that liberty, I received a request from the plaintiff to relist the action for further orders and directions. On 2 September 2019, the plaintiff applied for specific orders in relation to the mediation.
The plaintiff submits that as the matter is very close to trial and as both parties have counsel retained for the trial, then the most efficacious conduct of the mediation would occur if both parties were represented by their trial counsel and their solicitors at that mediation. This is because a considerable amount of effort has been and will be made to attempt to resolve the action at the mediation in the background of the knowledge already possessed by the solicitors and counsel.
The plaintiff now seeks orders and directions of the court requiring the defendant to retain counsel in order to render the mediation efficacious. There was no written application or supporting affidavit; the defendant attended the hearing and did not complain about the absence of this material and claimed no prejudice from the procedure used by the plaintiff.
In making its submissions, the plaintiff relied upon the decision of Bleby J in Addstead P/L (in liq) and Ors v Simmons and Ors (No 2).[1] In that case, Bleby J considered the situation where the court ordered the parties to attend a mediation under the equivalent of s 32 of the District Court Act 1991. Bleby J was there dealing with a partially masked copy of a particular settlement deed and whether an order should be made for the disclosure in the mediation of the redacted parts of the deed. His Honour refused the application but (at [40]) decided to delegate to the mediator the exercise of the power to direct that an unmarked copy of the deed be produced to a party or disclosed on such terms as to confidentiality as directed by the mediator.
[1] [2005] SASC 25 (24 January 2005).
In Addstead, the orders for the mediation were made pursuant to s 65 of the Supreme Court Act 1935. That section is now largely reflected in s 32 of the District Court Act 1991. At the time the applicable rules of court were rules 76.01, 76.02 and 76.03 of the 1987 Supreme Court Rules. Those rules relevantly read as follows:-
Mediators, Assessors, Arbitrators and Expert Referees
Definitions
76.01 For the purposes of this Rule:
“mediator” means a person appointed, as such, pursuant to section 65 of the Supreme Court Act 1935;
…
“mediation” includes (but is not limited to) any process, procedure or activity whereby a neutral person assists parties in dispute as to one or more issues in a proceeding to arrive at a mutually acceptable settlement of the dispute, which may involve processes of conciliation and also the making of positive recommendations designed to isolate issues and options and suggesting possible bases either for further negotiation or possible resolution of the dispute.
Mediators or Arbitrators
76.02 (1) A Judge or Master may be appointed as a mediator or arbitrator.
(2) A mediator or arbitrator may also be such other person as the parties agree or such other person as is appointed by the Court.
Mediation
76.03 A mediation may be conducted at any stage of an action in accordance with the following provisions:
Guidelines for Conduct of Mediation
(a) Unless the parties thereto agree to the contrary or the Court or mediator otherwise directs a mediation in an action shall be conducted in accordance with guidelines from time to time approved and promulgated by the Court as a practice direction.
Mediation not to operate as a stay
(b) Any reference to mediation in the course of an action shall not, unless the Court shall otherwise order, operate as a stay of proceedings or otherwise affect the caseflow management time standards applicable thereto.
Confidentiality of Mediation
(c) Every mediation shall be confidential and anything said or done by a party in the course thereof shall not be disclosed to anyone other than a participant in the mediation. A mediator shall not be compellable to give evidence or produce any documents relating to a mediation or proposed mediation in any subsequent proceedings concerning any issue to be mediated upon.
Attendance and Representation at Mediation
(d) Each party is entitled to be legally represented at a mediation. Unless otherwise ordered by the Court or agreed by the parties and the mediator, each party or any person representing a party must have authority to settle the action.
Facilitation of Mediation
(e) Each party shall take such steps as may be necessary to have the mediation dealt with expeditiously.
Costs of Mediation to be Costs in the Cause
(f) Unless otherwise agreed or ordered by the Court, the costs of the mediation shall be borne by each party and shall not be recoverable as costs of the action.
Reporting Mediation Outcome
(g) (i) Unless the parties to a mediation agree to the contrary, where a mediation resolves by agreement the matter in dispute in an action or any issue or issues therein, the mediator shall notify the Registrar, by memorandum signed by the mediator, of the outcome and of its terms.
(ii) The Registrar shall cause a true copy of such memorandum to be filed in the action.
(iii) Upon the filing [of] a copy of the memorandum of the outcome of the mediation, the Court shall, on application of a party, enter judgment in respect of those obligations which are enforceable against any party.
(iv) Any party may thereafter seek such order or orders or issue such process as may be appropriate for its enforcement.
(v) Where the mediator is of the opinion that the mediation has terminated or there is no likelihood that the mediation will resolve all of the matters in dispute, the mediator shall notify the Registrar to that effect by memorandum in writing identifying what issues (if any) remain to be determined by the Court. The Registrar will, upon receipt of it, file a true copy of the memorandum.

I observe that at the time there was no equivalent of this rule in the District Court Rules 1992.
Practice Direction 55 had application and it set out a number of directions for the conduct of the mediation process. Practice Direction 55(14) read as follows:-
14. Report on progress of mediation
(1)    The Mediator will:
a.   Within 2 days of the completion of the mediation;
b.   No later than 7 weeks after the referral for mediation; and
c.   As requested by the Court or the Mediation Officer,
report in writing to the Court on the result or progress of the mediation and, if it is not completed, on how long it is expected to take to complete it.
(2)    A report from a Mediator in the form in Appendix C may be sent to the Mediation Officer by post, fax or email.
Appendix C[2] does not add to the content of Practice Direction 55(14).
[2] APPENDIX C
REPORT BY MEDIATOR TO THE MEDIATION OFFICER
I, AB, the Mediator appointed by the Court in this action, report to the Court as follows:
1.(Set out the result of the mediation or progress made in it.)
2.(If applicable) I anticipate the mediation will be completed by 200X DATED 200X
The requirement for the report of the mediator within the Supplementary Rules is more prescriptive than under the previous Practice Direction 55(14) and Appendix C.
Under the Supreme Court Rules 1987, the general powers of the court were set out in rule 3.04. that rule read as follows:-
General powers of the Court
3.04 The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
Dispense with compliance with Rules
(a) dispense with compliance with all or any part of these Rules including a Rule relating to or governing powers that the Court may exercise of its own motion;
Leave to amend or withdraw
(b) give leave to any party to amend, alter or withdraw any step in a proceeding;
Validate any proceeding or document
(c) validate any proceeding or document which is invalid or informal;
Extend or abridge time
(d) extend or abridge any prescribed periods of time within or by which any step in a proceeding may be taken whether or not such period of time has expired;
Notice to be given to the person in possession before a possession order is made
(e) strike out or dismiss any step in a proceeding which is vexatious, frivolous or an abuse of the process of the Court;
Correct or revoke any order
(f) correct, revoke or vary any order by a subsequent order;
Give directions
(g) do all or any acts or give any directions relating to the conduct of an action subject to such terms as to costs or otherwise as it thinks proper;
Orders or directions where there are multiple parties
(h) where there are several parties to an action, make such orders, or give such directions, for or against one or more of such parties as are appropriate for each party separately or together, as the Court thinks fit.
The purpose of the Supreme Court Rules 1987 was enshrined in r 2.01, r 2.02 and relevantly here r 2.08. They read as follows:-
Purpose of the Rules
2.01 These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.
2.02 With the object of:
(a) promoting the just determination of litigation;
(b) disposing efficiently of the business of the Court;
(c) maximising the efficient use of available judicial and administrative resources; and
(d) facilitating the timely disposal of business at a cost affordable by parties;
actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.
Alternative dispute resolution
2.08 The parties are expected to consider alternative dispute resolution options including mediation at the earliest opportunity, and the Court will facilitate utilisation of such options to aid early disposal where appropriate.
In that background, I turn to consider the decision of Bleby J in Addstead.
In the discussion preparatory to the making of orders about the settlement deed, Bleby J held that the court has a duty to ensure that mediations ordered by it are facilitated by any means available to the court. At [15], his Honour held:-
If the use of the compulsory mediation power is to be effective and is not to be frustrated by an unwilling party, the court must be able to give directions incidental to the directions to mediate in order to ensure that the process is not frustrated by non-cooperation. A source of such power is to be found, in my opinion, by necessary implication from subsections (1) and (2) of s 64 itself, from the power of the court to give directions pursuant to rule 76.03(a) and the broad power to give directions relating to the conduct of the actions conferred by rule 3.04(g).
Bleby J referred with approval to the decision of Perry J in Baulderstone Hornibrook Engineering v Dare Sutton Clark & Ors[3] in which Perry J refused leave to appeal against an order made by him directed to a reluctant party to a mediation for that party to attend the mediation by an officer, employee, agent or insurer with authority to negotiate and settle the matter on behalf of the party. At [5], Perry J held that after finding that the power to order a mediation without the consent of the parties under this section must carry with it the ability to order the mediation to take place that:-
In the second place, I see no reason why the section should not be construed so as to empower the court, whether the order is made by consent or not, to give such further orders as are necessary to make the mediation efficacious.
[3] [2000] SASC 159.
Bleby J then held at [17], [18], [19] and [20] as follows:
[17] I respectfully agree. There is no reason why the order should be limited to an order requiring a party to attend and participate in the mediation.
[18] “Mediation” as used in s 65 of the Act and as defined in r 76.01 of the Supreme Court Rules may include a process by which settlement of a dispute is brought about by agreement to take action or to engage in conduct which a Court, in conventional litigation, could not order. That is one of the great advantages of mediation. The possible remedies open to parties in settlement of their dispute are limited only by the initiative and creativity of the parties and the mediator.
[19] Once it has ordered mediation under s 65 the Court has a duty to do all in its power to facilitate that process. In doing so, the Court cannot be limited in its orders and directions by the type of orders it might make in the course of pre-trial management of conventional litigation. In particular, in giving any such directions which may involve the disclosure of information or the production of documents, the Court will not be limited in its orders to information or documents which are directly relevant to an issue arising on the pleadings. The Court should not hesitate to give any necessary or appropriate direction if, in the opinion of the Court, such a direction will facilitate the mediation process, assist the task of a mediator or render the mediation process efficacious.
[20] Similarly, if the Court apprehends that the success of the mediation may be prejudiced by failure to disclose a piece of information or to produce a document that may assist in a successful outcome of the mediation, the Court is able to give directions for disclosure of that information or production of that document, even though the information or document may not be directly relevant to any issue arising on the pleadings, and even though the order may not be appropriate to the management of conventional litigation relating to the dispute.
Bleby J employed broad language in describing those orders which a court may make to ensure that the mediation process is efficacious. In so doing, his Honour intended to ensure that there was no limit upon the “…initiative and creativity of the parties and the mediator…”[4]
[4] Ibid at [18].
The task upon which this court has now embarked is to facilitate the mediation process, assist the task of the mediator and by whatever means are available, to render the mediation process efficacious. It is to be accepted that there is a distinction to be made between an order that a particular party attend the mediation whether by an officer, employee, agent or insurer and an order requiring a party’s counsel attend such a mediation. The resolution of that difference must be assessed in the background of the common law as I have described and of the scheme of the rules as they now operate. As I set out below, when a comparison is made between the 2006 rules of court and the scheme of the rules applicable at the time that Perry J and Bleby J made their decisions, the current regime of the rules of court are different.
I consider that both the powers within and the apparent focus of the rules and statutory provisions relied upon by Bleby J in Addstead have now been strengthened within the District Court (Civil) Rules 2006 such that there is now an even a greater focus upon the role of the court in the early resolution of disputes and so the use by the court of the powers at its disposal to achieve that end. Where the court is focussing upon the facilitation of a mediation process, assisting the task of the mediator and rendering the mediation process efficacious, the court should be slow to limit the breadth of its discretion in relation to the orders that it may make.
The court recognises that mediators operate in different areas and each, differently, is able to bring a particular set of skills to the task of conducting the mediation process. Part of this process of the recognition of the need for the court to facilitate the mediation process, to assist the mediator and to render the process efficacious is, where necessary, to be aware of the attitude of the mediator to a proposed mediation process put forward by a particular party. So much is apparent from the decision of Bleby J in Addstead and the decision of Perry J in Baulderstone. In Baulderstone, Perry J ordered a party to attend a mediation in circumstances where:-[5]
(The party) has intimated from the outset of the hearing of the application for reference to mediation that his party not only opposes the making of an order for mediation, but may well not wish to attend or cooperate with it in any way.
[5] Baulderstone at [4].
His Honour went on to discuss the sanctions available to the court if, in contravention of such an order, a party did not attend.[6]
[6] Ibid at [6], [7] and [8].
In support of this application, the plaintiff informed me from the bar table that the mediator has expressed significant reservations about continuing with the mediation if counsel were not involved. At my request, I heard viva voce evidence from the solicitor involved in the conversations with the mediator.
The solicitor, Mr Walker, gave evidence. He informed me that he was in regular contact with the mediator concerning his availability to conduct the mediation and had contact with him on at least three occasions. There had also been negotiations and communications between the parties’ solicitors about the availability of the mediator. A date that is convenient to all parties had been set; the mediation is to occur on 23 September 2019.
Mr Walker discussed with the mediator the availability of counsel for the mediation. That topic was raised with Mr Walker by the mediator following on from a conversation between the mediator and Mr Burtt, solicitor for the defendant. The communications between the mediator and Mr Burtt concerned the availability of Mr Burtt and his team for the mediation. It was the mediator who raised with Mr Walker the fact that Mr Burtt had informed him that he would be attending without counsel and that his client would be accompanied by a Mr Damian Lester. This had not been communicated by Mr Burtt directly to Mr Walker.
In a follow up conversation with the mediator, Mr Walker was informed in very clear terms by the mediator that it was highly desirable for counsel to attend the mediation and that absent counsel, the process of the mediation would not be efficacious.
Following the receipt of that evidence, Mr Burtt informed me that the defendant had formed the view that there could be no suggestion that legal representation by a solicitor would be inadequate or that there are special reasons why legal representatives ought in some way to be supplemented or replaced. Mr Burtt was not aware of the view of the mediator that the mediation process would not be efficacious absent the presence of counsel. Mr Burtt acknowledged the benefit in the mediation of the contribution that may be made by members of the independent bar but argued that in a mediation, a party can be as competently represented by a solicitor as by senior counsel.
I informed Mr Burtt that the court relies upon the skill of counsel and especially senior counsel to give their clients appropriate, robust, objective and independent advice which has, as one consequence, the assistance given to solicitors who are instructed by their clients and who may benefit from separate independent advice of counsel. Mr Burtt’s response was to point to the fact that there was no suggestion that he was not in a position to give commercial advice. So much may be accepted, but here, objectively assessed, the important issue is that the mediator has expressed a very clear view that clients will be best served by receiving independent and objective advice of experienced senior legal counsel.
Mr Burtt then submitted that the discretion adverted to by Bleby J in Addstead and Perry J in Baulderstone did not necessarily extend to giving directions about who the parties choose to have as their legal representatives at a mediation. He submitted that it may well be appropriate to have counsel but that may be important in circumstances where the court had concerns about the quality or adequacy of the legal representation being provided. However, as I informed Mr Burtt, the issue before me is not a subjectively assessed question of the court having concerns about the quality of present legal advice. That is not a matter for the court. Rather, the appropriate consideration is for the court to do everything in its power to facilitate and render the mediation process efficacious. This includes assisting the mediator in his task and this requires that proper attention be given to the views expressed by the mediator. That process is not and should not be directed to any question of subjective views about quality of advice; to the contrary, these are all objective considerations.
In that background, it is necessary to identify the rules of court which operate to inform the exercise of my discretion including as to its limits. The 2006 Rules are differently organised and disclose a different approach when compared to the rules regime applicable in respect of the decisions made by Bleby J and Perry J. It is appropriate that I refer first to the content of 6DCCR 116 and 117. In an expanded form, those rules reflect the content of rules 2 and 3.04(g) of the 1987 Rules. They are different because the District Court (Civil) Rules 2006 are intended to be more prescriptive of the powers of the court rather than use the more generalist approach as reflected in the 1987 Rules.
6DCCR 116 and 6DCCR 117 read as follows:-
116—Court's power to manage litigation
(1)The Court has the power to manage litigation to the extent necessary to ensure that it is conducted—
(a)     fairly; and
(b)as expeditiously and economically as is consistent with the proper administration of justice.
…
…
(2)The Court may, at any time, review the progress of a case in the Court and, on a review, may—
(a)exercise its power under subrule (1) by giving directions appropriate to the circumstances of the case; and
(b)make any other order that may be appropriate in the circumstances (including orders imposing penalties for non-compliance with these Rules).
117—Power to make orders controlling conduct of litigation
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
(2)     The Court may (for example)—
(a)     dispense with compliance with a rule;
(b)     extend or reduce the time for taking any step in a proceeding;
(c)     fix the time for taking a step in a proceeding if the time is not otherwise fixed;
(d)     permit a party to withdraw a pleading or other document;
(e)strike out a document or proceeding if the Court considers it frivolous, vexatious or an abuse of the process of the Court;
(f)    require the parties to state issues in a particular way;
(g)     make orders giving effect to, or modifying, litigation plans;
(h)require the parties to prepare a joint or separate statement of the issues in contention between them for the Court's use;
(i)require each party to file in the Court affidavits sworn by the witnesses the party proposes to call at the trial setting out the substance of the evidence the party proposes to adduce from each witness;
(j)require the parties to file in the Court statements of the documents they propose to tender at the trial;
(k)     deal with the form in which evidence is to be taken at the trial;
(l)dispense with compliance with the rules of evidence in relation to a particular issue or range of issues;
(m)    fix the time and place of trial.
(3)The Court may exercise its power to extend a time limit even though the relevant time limit has already expired.
(4)     An order under this rule may vary or revoke an earlier order.
(5)An order under this rule prevails, to the extent of any inconsistency, over any rule relevant to the subject matter of the order.
These rules contain broad powers which are to be construed broadly and r 117(1) empowers the court to make any orders that it considers necessary in the interest of justice connected with a proceeding.
The operation of those rules are to be seen in the background of the content of rule 3. That rule reads as follows:-
3—Objects
The objects of these Rules are—
(a)     to establish orderly procedures for the just resolution of civil disputes; and
(b)     to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
(c)     to avoid all unnecessary delay in the resolution of civil disputes; and
(d)     to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
(e)     to minimise the cost of civil litigation to the litigants and to the State.
There is no equivalent of this form of r 3 in the 1987 Rules. It is accepted that, to an extent, part of r 2 and r 3 of the 1987 Rules reflect this same approach. I am satisfied that in the interpretation of the 2006 District Court (Civil) Rules, and where necessary, regard may be had to the content of r 3. The content of r 3(b) is not an apparition. There have been a plethora of reports from common law jurisdictions all over the world about the cost of litigation. The court is not oblivious to such problems and assessments of costs made in this court in completed trials are breathtakingly large. The resolution of civil disputes by agreement of the parties is one of the prescribed objects of the rules and the court should do everything within its power to achieve that object.
I consider that the object of the facilitation and the encouragement of the resolution of civil disputes by agreement between the parties informs the breadth of the discretion of a judge of the court under 6DCCR 116, 117 and 220 as well as the operation of s 32 of the District Court Act 1991. The discretion of the court should not be circumscribed in the way contended for by the defendant. Consistent with the approach of Bleby J in Addstead and Perry J in Baulderstone, I am in a position where I may give a direction in the mediation process in this action to ensure that it is an efficacious process and will facilitate the resolution of the dispute.[7] In exercising my discretion, I may take into account the view expressed by the mediator appointed by the court that the mediation process will not be efficacious if it is conducted in the absence of counsel for the defendant. The court will give full weight to such an expressed view because the mediator has been appointed under orders made by the court in the exercise of its specific powers. I am unable to see how the position is different from the delegation by Bleby J to the mediator of the final decision about the disclosure of the redacted portions of the settlement deed and the terms of confidentiality. The court was prepared to delegate its powers to the mediator. There was there, as here, reliance by the Court upon the mediator. In this case, that includes the acceptance of the view expressed by the mediator about the efficacy of the mediation process.
[7] cf 6 DCCR 3(b).

In those circumstances and for these reasons, I consider that I am empowered to make the order sought under the operation of 6DCCR 3(b), 116, 117, 220 and s 32 of the District Court Act 1991. Having regard to the factual circumstances before me, and in the exercise of my discretion in the background of these facts and circumstances, it is appropriate that I make such an order.
I order that at the mediation conducted on 23 September 2019 and such other date to which the mediation shall be adjourned, the defendant shall be represented by counsel including senior counsel for the duration of the mediation.