Cawthorne v Olsen

[2005] SASC 34

Supreme Court of South Australia

(Civil: Application)

CAWTHORNE v OLSEN AND ORS

Reasons for Ruling of The Honourable Justice Perry (ex tempore)

27 January 2005

PROCEDURE

MEDIATION - ONE PARTY NOT CONSENTING TO MEDIATION

In civil proceedings seeking damages against public authorities for alleged misfeasance in public office and negligence in the administration of the plaintiff's permit to take rock lobster, the plaintiff sought an order that the matter be referred to mediation - the matter was close to trial, and a settlement conference conducted by a Master had failed to resolve the matter - the defendants opposed the application - consideration of relevant principles - application dismissed.

Edwards and Anor v Olsen and Ors; Murphy v Stevens and Anor Judgment No [2000] SASC 438 (unreported); Hopcroft and Anor v Olsen and Ors (1998) 201 LSJS 54, considered.

CAWTHORNE v OLSEN AND ORS
[2005] SASC 34

Civil

1. PERRY J.  (ex tempore)     I will give some reasons for ruling in this matter.

2. I have before me an application by the plaintiff for an order that the matter be referred to mediation. The application is opposed by the defendants.

3. The trial of these proceedings has been set for 7 March 2005.

4. The matter is of some complexity. The presentation of the claim and the defence will be more difficult than otherwise might have been the case, in view of the long period of time since the cause of action is alleged to have arisen.

5. The case bears strong similarities to the litigation involving holders of abalone fishing permits and licences which came to a head in the matter of Edwards and Anor v Olsen and Ors and Murphy v Stevens and Anor.[1]

   [1] Perry J judgment No [2000] SASC 438 (unreported).

6. In that case I heard evidence over a period of about a year, and gave a substantial judgment which dealt with a plethora of issues which were raised, including claims of misfeasance in public office and negligence and misrepresentation.

7. The Edwards and Murphy cases were specifically chosen as matters to be brought to trial out of a group of similar cases brought by members of the abalone fishing industry. This was on the footing that there was a reasonable prospect that the parties in other similar cases involving regulation of the abalone industry would be prepared to treat the outcome as a guide to settlement of the other cases. In fact, by and large, that did occur. None of the others went to trial, and some 10 or 12 other cases settled in the wake of the decision in Edwards and Murphy, albeit some taking longer to settle than others.

8. This case involves a lobster permit or authority, and is therefore to be distinguished in some respects from the abalone cases. However, having had the benefit of dealing with the pre-trial interlocutory hearings, I am able to say that despite Mr Ross-Smith’s argument to the contrary, substantial similar issues are involved.

9. Furthermore, I am unable to accept Mr Ross-Smith’s argument that a mediation would enable the parties to better assess the strength and weaknesses of the claim and defence.

10. In the first place, my decision in Edwards and Murphy, which was upheld in the Full Court, should serve to illuminate much of the ground which the court is likely to have to cover, in dealing with most of the issues now in contention.

11. That is not to say that I have in any respect formed a view as to whether the outcome of this case should be similar. All I am indicating is that the issues in the other litigation gave rise to similar arguments, and the manner in which the court approached those arguments in Edwards and Murphy will have a bearing upon the approach to be taken in this case. I stress, though, that it should not be thought for one moment, that it should follow from those comments, that the outcome of this case should be the same.

12. In the second place, I ordered a settlement conference which took place recently before Master Withers, when presumably the parties not only put their best offers, but made their position clear on the crucial issues.

13. Third, while I ordered a mediation against the wishes of the parties in the abalone case of Hopcroft,[2] that was before the decision had been handed down in Edwards and Murphy. Indeed, it was before the trial of the Edwards and Murphy case. Mediation in Hopcroft did not resolve the matter, although it settled much later after the Edwards and Murphy claim had been handed down.

    [2] (1998) 201 LSJS 54.

14. If the parties do not fully understand their respective positions and the strengths and weaknesses of their claim and defence in these proceedings at this stage, I feel that they never will.

15. They are, I am told, a long way apart. Although Master Withers thought the mediation had a reasonable prospect of resolving the matter, my extended experience of the abalone cases and my understanding of this case suggests to me that if it is going to settle, it will do so between now and the trial, without the assistance of a mediation.

16. It is very unusual to order mediation unless the parties agree on that course. This case is not so exceptional as to justify ordering a mediation so close to trial, against the wishes of the defendants.

17. The application for an order directing a mediation is dismissed.