Cosco v Hutley

[2017] NSWSC 1343

Supreme Court

New South Wales

Medium Neutral Citation:	Cosco v Hutley [2017] NSWSC 1343
Hearing dates:	15 September 2017
Decision date:	15 September 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Orders as sought in the short minutes: 1.   On or before 22 September 2017 the plaintiff provide security for the defendant’s costs by paying into the Court the additional sum of $110,000 being security for costs up to the commencement of the hearing in these proceedings. 2.   The proceedings be stayed until security is paid into the court. 3.   The defendant have liberty to make further application for such further security for costs as it may be advised on 5 days’ notice. 4.   The plaintiff to provide objections to interrogatories and categories by 22 September 2017. 5.   Refer the proceedings to mediation by a mediator to be appointed by agreement between the parties, with such mediation to be completed by 3 November 2017. 6.   Each party is ordered to attend the mediation. 7.   List the proceeding for further directions on 10 November 2017.
Catchwords:	CIVIL PROCEDURE – mediation – one party expressing fear of being present in a room with the other – appropriateness of ordering mediation over objection in that circumstance – where counsel confident steps could be taken to obviate concern
Category:	Procedural and other rulings
Parties:	Anthony John Cosco (plaintiff) Vanessa Hutley (defendant)
Representation:	Counsel: S Chrysanthou (plaintiff) M Richardson (defendant)   Solicitors: D’Arcy Sloman Peacock Lawyers (plaintiff) Harris & Company (defendant)
File Number(s):	2016/00332100
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation between two individuals arising out of a long-standing dispute, which has escalated over time to be quite acrimonious, concerning the plaintiff's construction of a house.

2. I am informed that each of the parties has an apprehended personal violence order against the other and that they are in dispute in other proceedings in addition to these including nuisance proceedings in this Court and proceedings regarding the development.

3. The parties have proposed directions today which are by consent save for a proposal by the plaintiff that the proceedings be referred to mediation. The defendant opposes mediation on the basis that she instructs her legal representatives she would be afraid to be in the same space as the plaintiff.

4. The proceedings cry out for resolution by mediation if that can be achieved. Each party, it would seem to me, has much to lose if the proceedings go beyond the stage that they are presently at. I am mindful of the importance of paying due regard not only to the suggestion of actual risk but to the defendant's mental health if she apprehends risk in the event that she is required to participate in a mediation with the plaintiff. In my respectful opinion, however, that concern can adequately be met by the suggestions proposed on both sides of the bar table as to the manner in which the mediation might proceed.

5. In particular, both counsel, who are experienced and able in this field of the law, agree that a mediation could proceed on the basis that each barrister would open his or her client's position in the absence of that client but for the benefit of the opposing party. If the mediation proceeds in that way, each party will have the benefit of hearing opposing counsel open but neither will be required to sit with the other in the mediation room with the mediator at any point in time.

6. I am satisfied that the mediation could appropriately proceed in that way. On that basis, I am satisfied that the concerns of the defendant should be able to be met and that the greater benefit to be obtained by referring the proceedings compulsorily to mediation is what should be pursued.

7. For those reasons I make the orders sought.

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Decision last updated: 04 October 2017