Baulderstone Hornibrook Engineering v Dare Sutton Clark & Ors

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

Civil

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.
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.
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.”
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.
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.
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.
If Mr Rice’s client does not attend, the question arises of what sanctions or consequences may then follow.
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.
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.
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.
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.
For those reasons, the application for leave to appeal to the Full Court is dismissed.

CaseChat Overview and Summary

In the matter of Baulderstone Hornibrook Engineering v Dare Sutton Clark & Ors, the applicant, Baulderstone Hornibrook Engineering, sought leave to appeal from an order made by the Supreme Court of South Australia, which referred the proceedings to mediation under section 65(1) of the Supreme Court Act 1935. The respondent, Dare Sutton Clark, opposed the mediation, and the primary judge ruled that the court had the power to order the mediation and direct the parties' attendance. The judge also noted that the court has various enforcement mechanisms to ensure compliance with its orders, such as staying proceedings, striking out pleadings, or entertaining an application for contempt of court. The court dismissed the application for leave to appeal, finding that the first point argued by the applicant, regarding the court's power to order mediation, was without merit and without substance. The second point, regarding the practice of appointing an external mediator against the parties' wishes, was also considered, but the court found no reason to believe that the appointment in this case created an issue worthy of the attention of the Full Court.

The legal issues in the case centred on the power of the court to order mediation and direct the parties' attendance, as well as the practice of appointing an external mediator against the parties' wishes. The applicant argued that the court did not have the power to order mediation without the consent of the parties, and that the appointment of an external mediator against the parties' wishes was inappropriate. The primary judge rejected these arguments, finding that the power to order mediation under section 65(1) carried with it the ability to direct the parties' attendance, and that the appointment of an external mediator was a procedure that could be adopted in appropriate cases. The court also noted that it had various enforcement mechanisms to ensure compliance with its orders, such as staying proceedings, striking out pleadings, or entertaining an application for contempt of court.

The court's reasoning in dismissing the application for leave to appeal was based on its finding that the power to order mediation under section 65(1) carried with it the ability to direct the parties' attendance. The court noted that the appointment of an external mediator was a procedure that could be adopted in appropriate cases, and that the practice direction suggested that the court should be circumspect about appointing an external mediator against the wishes of the parties. However, the court found no reason to believe that the appointment in this case created an issue worthy of the attention of the Full Court. The court also noted that it had various enforcement mechanisms to ensure compliance with its orders, such as staying proceedings, striking out pleadings, or entertaining an application for contempt of court.

The final orders of the court were to dismiss the application for leave to appeal to the Full Court. The court found that the first point argued by the applicant, regarding the court's power to order mediation, was without merit and without substance. The second point, regarding the practice of appointing an external mediator against the parties' wishes, was also considered, but the court found no reason to believe that the appointment in this case created an issue worthy of the attention of the Full Court. The court's decision highlights the importance of mediation as a means of resolving disputes and the power of the court to order mediation and direct the parties' attendance. It also reinforces the court's ability to enforce compliance with its orders and the various mechanisms available to ensure compliance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established