Betts Group Pty Ltd v Paul's Retail Pty Ltd (No 2)

[2010] FCA 1454

FEDERAL COURT OF AUSTRALIA

Betts Group Pty Ltd v Paul’s Retail Pty Ltd (No 2) [2010] FCA 1454

Citation:		Betts Group Pty Ltd v Paul’s Retail Pty Ltd (No 2) [2010] FCA 1454
Parties:		BETTS GROUP PTY LTD (ACN 008 675 929) v PAUL'S RETAIL PTY LTD (ACN 114 419 242)
File number:		WAD 353 of 2006
Judge:		MCKERRACHER J
Date of judgment:		21 December 2010
Catchwords:		PRACTICE AND PROCEDURE – mediation ordered pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth)
Legislation:		Federal Court of Australia Act 1976 (Cth) s 53A Federal Court Rules O 72
Cases cited:		National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Date of hearing:	1 December 2010
Date of last submissions:	10 December 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	M De Silva
Solicitor for the Applicant:	Solomon Brothers
Counsel for the Respondent:	A Wijesinghe
Solicitor for the Respondent:	W Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 353 of 2006

BETWEEN:	BETTS GROUP PTY LTD (ACN 008 675 929) Applicant/Cross-Respondent
AND:	PAUL'S RETAIL PTY LTD (ACN 114 419 242) Respondent/Cross-Applicant

JUDGE:	MCKERRACHER J
DATE OF ORDER:	21 DECEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The proceeding be referred to mediation pursuant to s 53A of the Federal Court Act 1976 (Cth) and O 72 of the Federal Court Rules.

2.The mediation be held as soon as possible after 1 March 2011 before a District Registrar or Deputy District Registrar of the Western Australia Registry of this Court.

3.The parties do provide the Registrar of this Court with their unavailable dates on or before 24 December 2010. 

4.Each party shall attend the mediation by a director or other representative familiar with the substance of the litigation and duly authorised to compromise it together with a solicitor or counsel representing the party, save that the respondent do have leave for its representatives to attend the mediation by telephone, if it chooses.

5.Each party have liberty to apply.

6.Costs of this directions hearing are reserved. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 353 of 2006

BETWEEN:	BETTS GROUP PTY LTD (ACN 008 675 929) Applicant/Cross-Respondent
AND:	PAUL'S RETAIL PTY LTD (ACN 114 419 242) Respondent/Cross-Applicant

JUDGE:	MCKERRACHER J
DATE:	21 DECEMBER 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. At a recent directions hearing, the applicant pressed for directions as to a mediation, while the respondent opposed mediation.  The main basis for the opposition to mediation from the respondent’s perspective was that it was thought to be a waste of time and money as the prospects of settlement were negligible.  In particular, in relation to costs, the respondent objected to a mediation being conducted in Perth as the respondent’s legal representatives are in New South Wales.  The respondent sought directions to proceed to a trial on liability alone.  Subsequent submissions were filed by each of the parties. 

2. The submissions do not greatly advance the matter but notwithstanding the opposition by the respondent, it remains in my view that the matter would benefit from mediation.  For the applicant to be pressing for mediation, suggests that it, at least, must be of the view that there is some prospect of a successful outcome from a mediation. 

3. These proceedings have been on foot since 2006 but there has been a lacuna while the respondent has been subject to a scheme of arrangement for a substantial part of that time. Nevertheless, at no stage when it was open to do so, did the respondent apply to transfer the proceedings pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (the Act) or seek to change venue even for the purpose of a mediation alone to the New South Wales District Registry of the Court. 

4. While the Court has jurisdiction, regardless of a motion by the parties, pursuant to s 48 of the Act to direct that the proceeding or part of the proceeding (in this case, the mediation) be conducted at a place other than the ‘proper place’ (in this case, being the Western Australian District Registry where the proceedings were commenced, I do not propose making such an order.

5. From the applicant’s perspective, it makes the point that the applicant company is incorporated in Western Australia and has its principal place of business in Western Australia.  Its directors and professional advisors are located in Western Australia.  No application has been made by the respondent and there is no reason for me to conclude that conducting the proceedings or any part of the proceeding in New South Wales is desirable within the principles discussed by Bowen, Woodward, Lockhart JJ in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 (at 162).

6. I propose to order that the parties proceed to mediation.  I will not make trial preparation directions in the meantime but in the interests of saving costs, I will make provision for the respondent to attend the mediation by telephone, if that is its firm preference, although it would not usually be the most satisfactory method.

7. The following orders are made:

   1.The proceeding be referred to mediation pursuant to s 53A of the Federal Court Act 1976 (Cth) and O 72 of the Federal Court Rules.

   2.The mediation be held as soon as possible after 1 March 2011 before a District Registrar or Deputy District Registrar of the Western Australia Registry of this Court.

   3.The parties do provide the Registrar of this Court with their unavailable dates on or before 24 December 2010. 

   4.Each party shall attend the mediation by a director or other representative familiar with the substance of the litigation and duly authorised to compromise it together with a solicitor or counsel representing the party, save that the respondent do have leave for its representatives to attend the mediation by telephone, if it chooses.

   5.Each party have liberty to apply.

   6.Costs of this directions hearing are reserved. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: 

Dated:       21 December 2010