Baulderstone Hornibrook Engineering v Dare Sutton Clark & Ors

[2000] SASC 159

BAULDERSTONE HORNIBROOK ENGINEERING
v DARE SUTTON CLARK and ORS
[2000] SASC 159

Civil

1. PERRY J. (ex tempore) Mr Rice has applied for leave to appeal from the order which I have pronounced referring these proceedings to mediation in accordance with s 65(1) of the Supreme Court Act 1935.

2. He identifies two points which he seeks to advance before the Full Court. They are my power to make an order directing the parties to attend the mediation, and the practice of the Court in appointing an external mediator.

3. As to the first point, I have ordered by paragraph 4 of the order which I have pronounced that each party:

   “Attend the mediation by an officer, employee, agent or insurer with authority to negotiate and settle the matter on behalf of the party.”

4. Mr Rice’s client, IB Consulting, 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 co-operate with it in any way.

5. My response was to point out that, clearly, the power to order a mediation without the consent of the parties in s 65(1) must, in the first place, carry with it the ability to do just that, namely, to order the mediation to take place, notwithstanding the failure by one party to consent. 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.

6. It is basic to any mediation that the parties involved attend. For that reason, in my view, it is implicit in s 65(1) that the Court has the power as an incidence of an order referring proceedings to mediation, to direct that the parties attend.

7. If Mr Rice’s client does not attend, the question arises of what sanctions or consequences may then follow.

8. I have drawn attention to the fact that the Court enforces compliance with its orders in a variety of ways. It may stay proceedings or strike out pleadings, or in a serious enough case it may entertain an application, usually by a Registrar’s summons, for contempt of court.

9. None of those questions arise at this stage as the situation has not arisen in which any party to the mediation ordered by me has failed to attend. If and when such a failure to attend occurred, no doubt consideration can be given to the consequences of any such failure.

10. In my opinion, the first point argued by Mr Rice in favour of the grant of leave to appeal to the Full Court is both without merit and without substance.

11. As to the second point, it seems to me that although the relevant practice direction suggests that the Court should be circumspect about appointing an external mediator against the wishes of the parties, it is clearly a procedure which, in an appropriate case, may be adopted. I have seen no reason why I should not adopt that procedure in this case, and neither do I see that in doing so I have created an issue worthy of the attention of the Full Court.

12. For those reasons, the application for leave to appeal to the Full Court is dismissed.