Chaina v Presbyterian Church (NSW) Property Trust (No. 10)

[2013] NSWSC 499

Supreme Court

New South Wales

Medium Neutral Citation:

Chaina v Presbyterian Church (NSW) Property Trust (No. 10) [2013] NSWSC 499

Hearing dates:

6 May 2013

Decision date:

06 May 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. That the Plaintiffs are to file and serve a schedule by witness name, statement date and paragraph number of the evidence in relation to any advance rulings made by the Court on 7 December 2012 which they now seek to be reversed, such schedule to be filed and served on or before 31 May 2013.

2. That the Plaintiffs are to notify the Defendant of any witness listed in the Plaintiffs' proposed order of witnesses contained in the letter dated 26 October 2012 from Berrigan Doube to Curwoods Lawyers upon whom they no longer rely upon on or before 31 May 2013.

3. That the Plaintiffs provide to the Defendant a list of the order of call of their proposed expert witnesses on or before 31 May 2013.

Catchwords:

PROCEDURE - compulsory mediation - where first mediation unsuccessful - application made after six weeks of hearing - new lawyers for Plaintiffs - application refused

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Mallick v McGeown [2008] NSWSC 1107
Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050

Category:

Interlocutory applications

Parties:

Mathew Chaina (First Plaintiff) and ors
Presbyterian Church (NSW) Property Trust (First Defendant) and ors

Representation:

Counsel:
S Philips (Plaintiffs)
R Stitt QC, G L Turner & H Stitt (Defendants)
Solicitors:
Blackstone Waterhouse Lawyers (Plaintiffs)
Curwoods Lawyers (Defendants)

File Number(s):

2002/69354

Judgment

1. Application is made by the Plaintiffs for an order under s 26 of the Civil Procedure Act 2005 that the proceedings be referred to a further mediation to be conducted by Mr Ellicott QC on one day of next week. The matter is put partly on the basis that there are now new solicitors and counsel in the matter on behalf of the Plaintiffs, partly on the basis that matters have changed since the last mediation in that Mr and Mrs Chaina have been cross-examined at considerable length in the proceedings and partly on the basis that this may be the last opportunity on which settlement is likely to occur in the case.

1. The Court has undoubted power to order a further mediation in these circumstances (Mallick v McGeown [2008] NSWSC 1107) but will not lightly do so where one has already taken place: Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050 at [3].

1. The application is opposed by the Defendants.

1. In my opinion, it is not appropriate to order a further mediation in the matter. These proceedings have now been on foot for some 11 years. The matter has been mediated before the Honourable Ian Callinan AC, unsuccessfully. I am given to understand that there might have been another mediation before Sir Laurence Street where concentration was given to the claims made by the two Chaina boys who were the First and Sixth Plaintiffs in the matter.

1. The fact that new solicitors and barristers have come into the matter seems to me to be a matter that tells against the need for an independent person to exercise a new mind on the matter to facilitate a settlement of the matter. The new lawyers are in as good a position to do that as a mediator is.

1. Certainly, the parties are in a different position now from what they were at the prior mediation. Mr and Mrs Chaina have now been extensively cross-examined. Both sides are better informed about the strengths and weaknesses of their respective positions because much in the case is dependent on the evidence of those two Plaintiffs. However, the cross-examination has also provided some insight into where each side is coming from. What has taken place has effectively curtailed the need for all of the preliminary moves before and at a mediation. The matter is now at the stage where offers and counter-offers simply need to be made.

1. If the Plaintiffs are keen to settle the matter, and I assume that that must be the case because the application is made for a mediation, there is nothing to prevent settlement negotiations being conducted in an informal manner between now and when the proceedings are due to return to Court for the next tranche of the proceedings. There will be undoubted costs involved in the further mediation which is said only to take a day but, on the basis of everything that has happened in this case so far, it is likely to extend beyond that period of time.

1. Given the history of the proceedings, the chances of it settling at mediation seem to be somewhat slight in any event. I am not persuaded that the presence of a mediator, even with the eminence of Mr Ellicott QC who it is intended will be the mediator, will make much difference to what can be achieved through negotiation.

1. I consider also that setting up a formal mediation is likely to be a distraction from the very essential preparation that needs now to take place to ensure that these proceedings resume on 15 July, the date for the commencement of the next tranche. Given that new solicitors and counsel have just come into the matter after a six week hearing and an 11 year history, that preparation will be substantial.

1. For the reasons I have given, if the Plaintiffs are anxious to further settlement of the matter then negotiations can take place between the solicitors or at any informal settlement conference that the parties are able to arrange.

1. The application for a further mediation is refused.

1. I will make the directions contained in paragraphs 1-3 of the Short Minutes of Order in the following terms:

(1)   That the Plaintiffs are to file and serve a schedule by witness name, statement date and paragraph number of the evidence in relation to any advance rulings made by the Court on 7 December 2012 which they now seek to be reversed, such schedule to be filed and served on or before 31 May 2013.

(2)   That the Plaintiffs are to notify the Defendant of any witness listed in the Plaintiffs' proposed order of witnesses contained in the letter dated 26 October 2012 from Berrigan Doube to Curwoods Lawyers upon whom they no longer rely upon on or before 31 May 2013,

(3)   That the Plaintiffs provide to the Defendant a list of the order of call of their proposed expert witnesses on or before 31 May 2013.

1. I will stand the matter over to 7 June 2013 at 2:00pm for further directions.

**********

Decision last updated: 08 May 2013