Dimento v Dimento

[2007] NSWSC 420

CITATION:	Dimento v Dimento & Anor [2007] NSWSC 420
HEARING DATE(S):	16 March 2007
JURISDICTION:	Equity Division Duty Judge List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	16 March 2007
DECISION:	Notice of Motion dismissed with costs
CATCHWORDS:	ALTERNATIVE DISPUTE RESOLUTION – mediation – compulsory referral to mediation – where one party opposes – whether order should be made – need for “level playing field” for mediation
LEGISLATION CITED:	(NSW) Civil Procedure Act 2005, s 26
CASES CITED:	Morrow v Chinadotcom Corporation [2001] NSWSC 209; ANZ ConvR 341
PARTIES:	Giacomo Dimento (plaintiff) Guiseppe Dimento (first defendant) Francesco Dimento (second defendant)
FILE NUMBER(S):	SC 4545/05
COUNSEL:	D M Flaherty (plaintiff) M J Heath (first defendant) J E Rowe (second defendant)
SOLICITORS:	Mullick & Associates (plaintiff) Lloyd & Lloyd (first defendant) John Carmody & Co (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Friday, 16 March 2007

4545/05 Giacomo Dimento v Guiseppe Dimento & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: (NSW) Civil Procedure Act 2005, s 26, empowers the Court to refer proceedings for mediation even without the consent of the parties to the proceedings or one of them. That said, the Court must take into account and may, in appropriate circumstances, regard as determinative a considered preference by a party to continue the proceeding rather than incur the additional expense and delay of a mandatory mediation [Morrow v Chinadotcom Corporation [2001] NSWSC 209; ANZ ConvR 341].

2 Although this is a dispute between members of a family, it is a dispute which has a commercial flavour to it. The characterisation of a dispute as a family dispute or a commercial dispute really says little about whether it is appropriate for reference to mediation. Many family disputes are suitable for mediation, as are many commercial disputes. The characterisation of a matter as a family or a commercial matter really does not inform the decision. Essentially, the question of whether proceedings should be referred for mediation involves a weighing of the costs and procedural consequences which might be incurred by a mandatory mediation, the costs which may be avoided by a successful mediation, the prospects of success of mediation and the availability of alternative means to progress negotiations between the parties.

3 If a mediation is to take place, it is usually important this take place on what might colloquially be called a “level playing field”.

4 The second defendant was joined to these proceedings on 14 December 2006 and has not yet filed a defence, yet alone any evidence.

5 In the Further Amended Statement of Claim the plaintiff alleges that the transfer of certain fishing licences from the first defendant to the second defendant was “with notice and knowledge of plaintiff’s prior interest in the licences by both the first and second defendants.” The state of knowledge of the second defendant and, in particular, whether he was a bona fide purchaser for value without notice, or took on some other basis, will be a very material fact in these proceedings, particularly insofar as relief is sought against the second defendant. The plaintiff and the first defendant have put on their evidence, but the second defendant has not. Although it is said on behalf of the first defendant that, if the second defendant has something to add, he can say it in the mediation, it does not afford a level playing field where the plaintiff (and the first defendant) have committed their versions to affidavit, available for use in the proceedings, but the second defendant reserves to the privileged circumstances of a mediation the opportunity to say what he wishes, and not be committed to a sworn version in advance. Accordingly, even if I thought mediation should otherwise be ordered, that matter would persuade me that now is not the occasion to do so.

6 In any event, I have to take into account the fact that one of the parties opposes mediation, at least at this stage. That is, as I have said, not conclusive, but it does not augur well at the outset for the success of mediation. Moreover, the evidence does not show negotiations between the parties cannot proceed in the ordinary way between the parties’ representatives, or why the parties cannot make offers of compromise under the Rules, or why it would not be possible if the parties come to a point of wishing to negotiate further, for a round table conference to be convened, whether of the parties themselves or of their representatives.

7 In particular, the evidence does not at this stage establish a refusal to negotiate on the part of the plaintiff. There is evidence that offers of settlement have been made by the first defendant to the plaintiff [in paragraph 6 of the affidavit] but the evidence stops there and does not indicate there has been any refusal to negotiate. At this stage, the evidence is [according to a letter from Mullick & Associates to Lloyd & Lloyd] that the plaintiff is prepared to consider mediation, once affidavit material has been filed and hearing date obtained.

8 [Counsel drew his Honour’s attention to an affidavit sworn by the second defendant on 2 November 2006].

9 The matters to which my attention have been drawn do not alter the position; the stance of the second defendant on the allegations in paragraphs 28, 29, 30 and 31 of the Statement of Claim remains unknown and unverified. In those circumstances, the existence of an affidavit of the second defendant that does not address the critical issues (it was served before he was joined) does not affect the view I have already expressed as to the absence of a level playing field for the commencement of the mediation. And as I was saying before counsel drew my attention to that matter, the evidence does not indicate that there is a refusal to mediate, but rather a willingness to negotiate, at a later stage once the pleadings and evidence are complete. In my view, an insistence that the pleadings and evidence be completed is in the circumstances an entirely reasonable precondition to mediate.

10 Although not unknown, it is a large step to order a party to the negotiating table, particularly when it indicates a willingness to do so at a later stage. I am not prepared to do so on the present state of evidence in these proceedings.

11 I order that the Notice of Motion be dismissed with costs. I order that exhibits on the Motion be returned.

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