Dank v Herald and Weekly Times

[2015] VSC 270

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2014 03501

STEPHEN DANK	Plaintiff
v
HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937)	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 JUNE 2015
DATE OF RULING:	12 JUNE 2015
CASE MAY BE CITED AS:	DANK v HERALD AND WEEKLY TIMES
MEDIUM NEUTRAL CITATION:	[2015] VSC 270

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PRACTIE AND PROCEDURE – Mediation – Defamation proceeding - Whether judicial mediation should be ordered – Discretion – Relevant factors – Sufficiency of basis for application – s 66 Civil Procedure Act (2010), r 50.07 Supreme Court (General Civil Procedure) Rules 2005, Practice Note No 2 of 2012 Judicial Mediation Guidelines.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Low
For the Defendant	Mr J P Cashen

HIS HONOUR:

1. This proceeding was before the court for directions. The plaintiff applied for judicial mediation in lieu of  the usual order for a private mediation.[1]  Judicial mediation was sought on a statement from the Bar table by the plaintiff’s solicitor that the plaintiff could not afford to pay his share of the cost of mediation.  The defendants, who desired a direction for mediation, neither consented to nor opposed the application.

   [1]Practice Note 6 of 2015, Schedule 1.

1. Under s 66 of the Civil Procedure Act 2010, the court is authorised to order a judicial mediation.  As the Judicial Mediation Guidelines set out in Practice Note 2 of 2012 explain, judicial mediation is not a substitute for mediation by an appropriately qualified private mediator, rather it is another option that may be employed in appropriate cases. Paragraph 7 of the Practice Note provides that a matter referred to a judicial mediation will usually have one or more of certain features.  The list of features includes ‘one or more parties with limited resources’.

1. The court has a discretion under r 50.07(1) whether to refer a proceeding to judicial mediation. That discretion is to be exercised to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in the proceeding by reference to the objectives specified in s 9(1) and the matters specified in s 9(2) of the Civil Procedure Act 2010.

1. Here it is apparent the plaintiff has the benefit of advice and legal representation.  The court was not informed that he receives that benefit under any special or unusual arrangement.  It appears paradoxical that a litigant who can afford legal representation cannot afford his share of the costs of a standard procedure in litigation, which mediation now is.  The plaintiff’s solicitor mentioned a special arrangement between the plaintiff and his solicitors; ‘no win no fee’. There was no explanation of the detail of that arrangement, much less so any evidence of it, and it was not suggested that the solicitor, to the extent that he operated as a litigation funder, could not pay the plaintiff’s share of the mediation costs.

1. No good reason was shown why the costs of a standard interlocutory process in litigation should not, in the first instance, be borne by the litigant or his litigation funder. The overarching obligations under the Civil Procedure Act apply equally to litigation funders, solicitors and plaintiffs.

1. The resources available to the court for judicial mediations are limited and the court is entitled to have regard to the efficient conduct of the business of the court and the efficient use of judicial and administrative resources in exercising the discretion under r 50.07 by ordering a judicial mediation. Further, when regard is had to the other features of a proceeding that may attract a reference to judicial mediation that are set out in paragraph 7 of the Practice Note, it is clear that the plaintiff bears an onus to persuade the court that judicial mediation is the proper course to facilitate the just, efficient, timely and cost effective resolution of the real issues in the dispute.

1. As the plaintiff has placed no material before the court, I am unable to evaluate his claim that he cannot afford his share of the costs of a private mediation or form a view whether those costs should be borne by whomever is funding the litigation on his behalf. I cannot assess whether this is an appropriate case to depart from the usual practice of ordering a private mediation and to call on the scarce resources of the court. Usually, parties need to bring the circumstances giving rise to the exercise of a discretion to the court's attention so that they may be weighed against the effects of any change in the standard procedures and the objectives of the rules.  An explanation was required in this case.

1. For these reasons, the application for judicial mediation is refused.

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